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The use of generative AI systems such as chat GPT is increasingly finding its way into the world of work. Artificial intelligence can help employees, particularly for research purposes or for drafting formulations. However, both employees and employers are increasingly concerned about the security of personal and sensitive company information.
Nevertheless, employers allow and motivate their employees to use AI systems. However, this is met with criticism, as in this case from the works council, which would like to have a say in the introduction of the use of AI.
Company allows use of chat GPT
This case involves a globally active Hamburg-based manufacturer in the field of medical technology with around 1,600 employees at its headquarters. The company wanted to make artificial intelligence usable as a new work tool, activated the tool for use by its employees and published information and guidelines on the intranet regarding the use of Open AI and similar services. The only requirement was that they had to be used via a web browser and their own private account.
Works council sought prohibition of use
However, the company’s works council took a critical view of this and called on the management to prohibit the use of chat GPT or to block access to the website. This would continue at least until a framework agreement for the use of AI had been finalized. Despite repeated requests from the works council, the management did not revoke the usage permission with the associated instructions and guidelines.
The works council then sought interim legal protection from the Hamburg Labor Court to prohibit the use of ChatGPT and other AI services.
Violation of the right of co-determination?
The works council plays a formative role in the company and attempts to assert the rights and interests of employees vis-à-vis the management.
The works council has various rights that are set out in the Works Constitution Act (BetrVG). These include various co-determination rights. In the underlying case, the works council asserted its extensive co-determination rights under Section 87 BetrVG and the gross violation thereof.
A right of co-determination pursuant to Section 87 para. 1 No. 1 BetrVG, as the published guidelines on the use of AI are specifications, so that the organizational behavior of the employees is affected. Furthermore, the right of co-determination under Section 87 para. 1 no. 6 BetrVG was affected. The works council had argued that the use of ChatGPT processed and stored employees’ personal data. Finally, the right of co-determination under Section 87 para. 1 no. 7 BetrVG was affected, as the introduction of new software can be associated with psychological stress for employees.
No violation of the right of co-determination
In the opinion of the Hamburg Labor Court (decision of January 16 (case no. 24 BVGa 1/24), the specifications regarding the use of AI services in this individual case fall under the so-called co-determination-free conduct.
A right of co-determination under Section 87 para. 1 no. 1 BetrVG does not exist, according to the ruling, as AI services constitute work equipment and therefore relate to work behavior and not the so-called orderly behavior of employees, in which a right of co-determination would exist. This concerns the “coexistence and collective interaction of employees”. However, determining the manner in which work is performed is precisely an expression of the employer’s right to issue instructions. It merely specifies the work obligation. Co-determination by the works council is excluded.
The right of co-determination pursuant to § 87 Para. 1 No. 6 BetrVG was not violated. ChatGPT is not a technical device that is intended to store employees’ personal data.
A prerequisite for the use of AI services was the use of a personal account. The employer has no possibility to view the employees’ usage behavior.
If an employee wants to use these tools, they must access them using a browser, just like any other website. It is true that the browser will regularly record the dial-in. However, this is not a special feature of ChatGPT, but results from the usual functions of the browser, which saves the user’s surfing history. The browser itself is therefore a technical device that is suitable for recording employee performance and behavioral information. However, the parties have concluded a group works agreement on the use of browsers, which is why the applicant has exercised its right of co-determination under Section 87 para. 1 sentence 1 BetrVG has already been exercised.
Finally, a right of co-determination under § 87 Para. 1 No. 7 BetrVG was not apparent to the court. A concrete risk of psychological stress was not recognizable and could not be conclusively presented by the works council.
The works council’s application was therefore rejected on the grounds of unsuccessfulness.
Co-determination for ChatGPT: exception for company accounts
The case would be different if the employer had provided company accounts from ChatGPT, for example. This is because the employee would then have direct access to the accounts. A right of co-determination under Section 87 para. 1 No. 6 BetrVG would then be given again, as the AI could enable performance and conduct monitoring.
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