act legal Germany (AC Tischendorf Rechtsanwälte) 13. October 2021

“Status quo vadis”: Smart automation in Human Resources

When automating HR processes, it is important to make them legally compliant in order to benefit from technological progress in the long term.

“The imagination knows no bounds.” This sentence is especially true when it comes to the digitalisation of process steps in HR departments. Companies such as Workday, Service Now, SAP and Oracle advertise a “digital workflow”.
workflow”. Among other things, they offer harmonised, group-wide digital application platforms. The systems scan applicant portals fully automatically, contact potential applicants if they meet predefined criteria, create individualised job offers and communicate with identified candidates. criteria, create individualised job offers and communicate with identified candidates, and arrange appointments.

Robotic Process Automation

Complementary “offer to contract” software helps to automatically create and send contracts, confirm the conclusion of a contract, inform the works council and send the on-boarding documents.
The latter falls under the term Robotic Process Automation. Repetitive processes in Human Resources (HR), including payroll, travel and expense management, works council information, can be automated in this way.
The trick is to identify rule-based processes that the software handles virtually for an employee. This can be achieved if the same process steps always occur (open files, copy, enter into Excel or another programme). Another area of application is people analytics. By linking individual personnel data, the Watson Career Coach, for example, independently suggests suitable further training and development steps. Furthermore, general personnel data can be linked in order to automatically take into account the number of retirements, the average natural fluctuation and other key figures in personnel planning.

The use of artificial intelligence is most exciting here. Chatbots are particularly well known for their ability to selection of new employees and for inclusion in talent management programmes. They For example, they evaluate pitch, speaking rate and vocabulary during short telephone conversations that the candidates have “with the robot”, speech rate, vocabulary and analyse language skills and, “if desired”, personality. Thus Fraport AG, for example, identifies talent with the help of this technology.

These developments are inspiring, especially as further promises from the IT industry are tempting business leaders. simpler and faster availability of data, acceleration of processes, reduction of error-proneness, savings in personnel costs error-proneness, savings in personnel costs, increased attractiveness of the company on the labour market. labour market. So what’s the catch?

The introduction of digital systems is complex, no one disputes that. But it is feasible if sufficient care is taken in the preparation and processing of the necessary data. Legally, the hurdles are already higher. The principle of data protection law, according to which automated data processing may not be the sole basis for personnel decisions, can still be fulfilled. However, many state data protection commissioners consider many IT tools for automated applicant selection to be ineffective because they are “not necessary” and proportionate. necessary” and proportionate.

Weighing of interests necessary

In the author’s opinion, such sweeping statements go too far. Based on these opinions, companies are are well advised to prepare the use of algorithms & co. carefully from a legal point of view. Required are a transparent and prior description and documentation of the individual process steps. It must be determined what data is collected, processed and stored for what purpose.

The data must be suitable to achieve the previously defined purposes of the data collection and should, as best as possible, be related to the activity (potentially) performed by the employee. This serves to justify the collection of the data. It is also recommended that a company carries out a balancing of interests and that this is done and document this, together with the other legally required steps, in text form before introducing the software. in order to be able to prove the legality without delay, if necessary.

Finally, the database must be non-discriminatory; otherwise, past infringements will continue into the future. This is especially risky when relying on large amounts of data.

Consents from applicants and employees to use certain digital systems can help, as the General Data Protection Regulation explicitly allows them. They should inform comprehensively and transparently and – if possible – be in writing. Text form is only permitted in exceptional cases. Furthermore, the data subject must be data subject must be informed of his or her right of revocation for the future.

“Smart labour contracts”

The introduction of “intelligent employment contracts” is no longer about a paper employment contract, which an HR employee customises, prints out, has signed and sends. Rather, it is about the virtual virtual representation of a contract in a programme, which is automatically sent to the recipient. This is particularly interesting for corporate groups if the introduction of “intelligent employment contracts” can be used to application processes and employment contract templates, remove superfluous clauses and flexibly respond to individual and to be able to react flexibly to individual adjustments with conditional clauses – as far as reasonably possible in each case.

Barely any technical limits

It should not be forgotten that the law provides for the written form in certain cases, for example in the case of fixed-term contracts and post-contractual non-competition agreements. fixed-term contracts and post-contractual non-competition clauses. A digital signature stored in the system signature stored in the system is not sufficient.

There are hardly any technical limits to the imagination when it comes to automating HR processes. However, it is important to capture the imagination mentioned at the beginning of this article in order to make the processes legally compliant and to be able to profit from technical progress in the long term. Otherwise, there is the threat of unwelcome mail from a supervisory authority.

Source: Börsen-Zeitung Nr. 197, Wednesday 13 October 2021

For more information please contact

Dr. Thomas Block, MBA

Attorney at law
act legal Germany AC Tischendorf Rechtsanwälte Frankfurt, Germany
Phone: +49 69 24 70 97 36