Artificial intelligence and the gig economy could change employment relationships ‘beyond recognition’, chief judge warns

This article originally appeared in LawNews and is here with permission.

By Mahvash Ikram & Neil Sands

Full-time employment may become the exception, not the norm, as technology, demographic shifts and even climate change shape the future of the workplace, Employment Court Chief Judge Christina Inglis says.

Inglis said the employer-employee relationship could morph beyond recognition, or even disappear entirely, as artificial intelligence (AI) and the gig economy take hold, requiring fundamental changes to employment law.

“The traditional picture is reassuring – employer here, employee there, with an agreement in the middle binding them together. But what if the actual relationship is triangular or quadrilateral or distributed across a global network?” she said in a recent address to The Law Association’s Burning Issues in Employment Law Forum.

“Do we stretch old concepts until they break? Abandon inherited concepts whenever a new business model appears. We may need to step back, identify the purpose that the law is seeking to serve, and ask whether the legal structure still gives effect to it.”

While acknowledging that accurate predictions are notoriously difficult to make, Inglis said it was clear that change is coming at pace in the employment sphere.

“Working lives may move between contracts, platforms, projects and enterprises, combining periods of employment, self-employment, caregiving and education. Machines may perform much of the routine work previously undertaken by humans,” she said.

In addition to the changes brought by technology, Inglis said climate change would also impact the way in which people earn a living in the future.

“Environmental change may require major economic restructuring, industries contracting, new industries emerging, workers relocating and skills being redeployed.”

‘Shape-shifting’ for the future

Inglis said if traditional employment becomes “an ever-shrinking category”, it will require a rethink of what the organising principle of labour law in New Zealand looks like and the protections it offers.

“The question is not necessarily whether employment status should disappear, but whether particular protections depend entirely on that status… [Do] broader relationships of dependency, vulnerability, control and contribution give rise to a need for protection? After all, isn’t it likely that some protections will need to travel with work rather than only with the conventional job? Might the organising principle come to be seen as work law?”

Even with the expanded role of technology in the future workplace, Inglis said many of the challenges faced will be “old problems presented in new ways”.

“The machine may be new, the imbalance of power may not be,” she said. “Platforms and algorithms alter the way power is exercised, but they don’t remove dependency, commercial pressure, workplace trust or the capacity for error or unfairness.

“A worker can still be humiliated, discriminated against or deprived of a living.”

Inglis said there may be some “shape-shifting” in employment law, but she hoped it would remain tethered to principle.

“The law will continue to evolve, although not necessarily by the route we presently expect,” she said. “I suspect we will keep returning to three questions: what should remain constant, what will need to adapt and what happens if the employment relationship itself changes beyond recognition?”

More litigation, more complexity – less justice

Examining more immediate issues, Inglis raised concerns about access to justice via the employment law system and the “over-legalisation” of employment relationships.

She said the value of employment law could not be determined solely by the number of cases that are determined, instead suggesting “it is measured by the disputes which never arise because people know what the law requires”.

“Those people are operating within the shadow of the law,” she said. “But there is a paradox. If the law becomes too complicated, expensive or inaccessible, its shadow recedes. Those who most need its protection are least able to invoke it, while non-compliance becomes an increasingly alluring option.”

She said this meant increased complexity in employment dispute resolution was not necessarily cause for celebration, questioning what value such increased complexity provided.

“It is a truism that the most skilful employment practitioner is generally not the one who can say or do the most. It is the one who can identify what does not need to be said and done,” she said. “What we often see is that time costs money, and in many employment disputes, money is in exceedingly short supply.”

Inglis said not every employment problem should necessarily become a legal problem, and making it become one could be counter-productive and actually exacerbate workplace disputes.

“Too easily, a disagreement becomes a grievance, a difficult conversation becomes a formal process, and a performance concern expands into an investigation, a report and ultimately litigation,” she said.

“By the time a matter reaches the court, we sometimes find that the original workplace problem has almost disappeared beneath the weight of its procedural history.”

She said it was an issue for everyone involved in employment law to consider when contemplating how to ensure the system remains accessible.

“I think we should resist the assumption that more process, more law or more legal engagement necessarily produces more justice. Sometimes it does. Sometimes it produces only delay, cost, alienation, and in some cases the abandonment of proceedings altogether.”

*Neil Sands is Deputy Editor at LawNews. Mahvash Ikram reports there too. This article originally appeared in LawNews and is here with permission.