When the App says No

You may be familiar with the ‘Computer says no’ sketches from Little Britain. Factor in facial recognition software, and the App can now do that all by itself!

A recent application to the Employment Tribunal contained claims of indirect race discrimination, harassment, and victimisation from an Uber Eats driver locked out of their App.

Background

The food delivery company Uber Eats introduced facial recognition software that allowed drivers to access its App. This took a photo of the driver’s face in real-time and compared it against their profile photo. Access to the App is a pre-requisite for drivers to perform their role.

The Claimant was locked out of the App after his facial recognition failed. He was then told that he had been suspended from the App. Uber Eats didn’t explain the process that led to that suspension and did not allow him to challenge this decision.

In October 2021, he filed an employment tribunal claim for indirect race discrimination, harassment, and victimisation. The Claimant was funded and supported by the Equality and Human Rights Commission and the App Drivers and Couriers Union, which were particularly concerned about the use of artificial intelligence (AI) and how it could be used to suspend access to the App and subsequently deprive employees of income.

It was alleged that the AI technology placed individuals who are black, non-white, or of African descent at an unfair disadvantage. They were more likely to face challenges when using facial recognition. This was supported by research studies which showed facial recognition technology has its highest error rate,  approximately 35%, when recognising black women, compared to to a 99% accuracy for white males.

Uber Eats applied to have the claim struck out.  The  Employment Tribunal refused the application and listed a final hearing for 17 days in November 2024, emphasising the complexity of claims related to AI.

The case has since been settled, so no determination will be made. The Claimant has returned to work and regained access to the App. That said, Uber Eats fell short in failing to fully explain the process of regaining access to the Claimant. Uber Eats has stated that its technology now includes a ‘robust human view’. 

Comment

You need to ensure that you are transparent with your workers regarding when and how AI is used. When engaging with technology like facial recognition, you must put appropriate procedures in place to prevent unlawful discrimination and provide opportunities to challenge decisions made by AI.

If you use AI, it would be advisable to implement a policy within your company handbook to govern its use. This should detail how and when AI is used, who is responsible for overseeing the use, and a contact point for your staff should they face difficulties with the technology.

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