Managing Employee AI Use in Redundancy Consultations

The growing use of AI tools, often promoted as enhancing productivity, has contributed to many businesses streamlining operations and restructuring their workforces. However, employees placed at risk of redundancy are increasingly using AI to challenge aspects of the redundancy process, creating new practical issues for employers.

In the last two years, many employers have experienced a significant transformation in the way in which employees engage with them during redundancy processes. In many cases, procedures have become longer, more complex, and substantially greater volumes of correspondence have been generated. Written communications have adopted a more combative and legalistic tone, with the sender often emboldened by AI assistance, though legal terminology may not always be used correctly. A notable disconnect has also emerged, whereby an employee may submit extensive written questions and issues, yet have little to say in face-to-face consultations, presenting a stark contrast between their confident written persona and their actual demeanour during meetings.

The rise of AI-generated employee correspondence in redundancy processes can present genuine practical challenges. Despite this, the fundamental legal principles remain unchanged, and there are some principles that employers can adopt to manage the challenges of employee AI use, whilst maintaining a fair redundancy process. 

In this article we take a look at some of the key considerations.

Starting point: The legal framework remains unchanged

Whilst the way in which employees engage with redundancy processes may be changing, employers should not forget that the legal principles underpinning the process remain the same.

For a redundancy dismissal to be considered fair in respect of an employee with unfair dismissal rights, an employer must:

• establish that redundancy was the real reason for the dismissal; and
• act reasonably, in all the circumstances of the case.

In practice, this means an employer should follow the procedural fairness guidelines which have developed through case law, namely:

• provide employees with early warning of proposed redundancies;
• adopt a fair basis on which to select employees for redundancy (employers should use objective selection criteria and apply the selection criteria fairly);
• consult meaningfully with employees when the proposals are still at a formative stage (i.e. no final decision has yet been taken) and consider any representations that employees make; and
• consider suitable alternative employment and take reasonable steps to avoid or minimise redundancy by redeployment.

How are employees using AI in the redundancy process?

Understanding how employees are deploying AI tools can help employers anticipate and manage any challenges. Some of the key examples we are seeing include:

• Understanding the legal framework and their rights: Employees are using AI tools to research the redundancy process and better understand their rights. As a result, employees may be better equipped to challenge what employers are saying to them, particularly now they are able to easily use AI to identify whether an employer’s proposed process aligns with best practice. However, employees may lack the experience to critique AI-generated information, and may misuse legal terms or misunderstand procedures.
• Analysing the business case: AI is being used to analyse the employer's business case for redundancies and identify potential weaknesses or inconsistencies, generate questions to challenge the business rationale, and research industry trends or comparable situations to assess whether the proposals are reasonable. This results in employers facing a greater degree of challenge to their redundancy rationale.
• Evaluating selection criteria and scoring: AI tools are used to assess whether proposed selection criteria are objective and non-discriminatory, generate arguments to challenge any subjective or potentially discriminatory criteria, or challenge how pooling and scoring has been undertaken. This again requires employers to repeatedly justify their decisions.
• Preparing for consultation meetings and drafting written submissions: Employees can more easily prepare lists of relevant questions to ask during or in advance of consultation meetings and/or draft written responses and counter proposals. As a result, employers are needing to undertake a great deal more preparation for the meetings, or draft lengthy responses to written submissions.
• Identifying alternative employment opportunities: Employees are using AI to research available roles within the employer's organisation or associated companies, identify transferable skills that might qualify them for alternative positions, draft proposals for retraining or upskilling to take on different roles and prepare arguments for why they should be considered for specific alternative positions. AI tools lack knowledge of an employer’s specific business needs and role nuances, yet employers may find themselves expending significant resources responding to employee assertions regarding available roles or suitability.

The result is a qualitative and quantitative shift in employee engagement:

Volume and Complexity: Redundancy processes are becoming longer and more complex, generating much more material and correspondence.

Tone and Style: Correspondence is getting longer and appears more legalistic (although use of legalistic terms may not always be correct or accurate/appropriate in the context). Employee correspondence may also be more combative in written form versus in person, particularly where drafted with the assistance of AI.

Disconnect: Employees may send lengthy questions or correspondence in advance, leading employers to prepare for a meeting which could be confrontational. They can, on the face of it, appear confident and knowledgeable of the process from their written correspondence, but present completely differently in a consultation meeting without the support of AI in the room.

How should employers respond?

Employers may wonder how to manage this added complexity and resource burden. Below are five core principles that may help guide employers through this tricky landscape:

1. Prioritise Face-to-Face Engagement: Getting in front of the employee (where possible) allows you to read body language, test understanding, and facilitate genuine conversations. An employee cannot bring AI into the room, creating a more natural setting for dialogue. This is particularly important for testing whether employees genuinely understand and hold the views set out in their AI-generated correspondence. You could prepare for these meetings by identifying themes in the employee’s previous written correspondence, responding in person, then following up by email with a concise summary (which can also be used as a script for the meeting).
2. Address Repetition Firmly: If an employee is repeatedly raising the same issues, and you have already dealt with the points being raised, this should not prevent you from concluding the process. Confirm the point has been dealt with, refer back to previous responses and confirm that you consider the point closed.
3. Maintain Robust Documentation: Keep detailed notes of all in-person meetings, particularly recording where employees cannot explain written submissions. Maintain a clear record of which points have been raised, when they were addressed, and your responses. This documentation will be crucial if the fairness of a dismissal is later challenged at tribunal.
4. Remember Your Discretion: Whilst employees may have helpful views and suggestions, many things (such as selection criteria, pooling, and others) are ultimately at the discretion of the employer, provided that the employer is acting reasonably. It is easy to be drawn into a lengthy discussion on the merits of each employee suggestion, but as long as they have been reasonably considered, the outcome decision ultimately rests with the employer.
5. Don't Be Intimidated by Legalistic Language: Whilst the tone of the messaging can create the perception of an informed opinion or that the employee has received legal advice, that isn’t necessarily the case. AI-generated legal arguments may misapply (or even falsely create) case law or cite irrelevant or incorrect principles. Sophisticated language does not equal legal merit. Focus on substance over style when evaluating employee submissions.

Data protection and confidentiality considerations

Finally, potential data security issues and breaches of confidentiality obligations may arise if an employee inputs personal data, confidential business information, or details about colleagues into AI platforms in order to seek guidance or generate correspondence.

Employers may wish to remind employees of their ongoing confidentiality duties and the risks associated with sharing sensitive information with third-party AI tools. Employers should also consider implementing policies in relation to AI use with clear parameters identified, alongside appropriate ongoing training.

Conclusion

Whilst employees at risk of redundancy are increasingly using AI tools to challenge processes, making consultations more complex and legalistic, there are practical steps employers can take to manage them, including prioritising face-to-face engagement, addressing repetitive issues firmly, maintaining robust documentation, and implementing clear AI use policies. Ultimately, however, employers must be confident of their redundancy rationale and comfortable that they are following a fair process in line with the well-established guidelines in this area. 

If any of the issues raised in this article are impacting your business, please reach out to our employment team.