The use of AI may be tempting when trying to understand your rights as an employee or how to manage an employment issue as a business. You might even seek to use AI to prepare a letter to your employer or employee.
However, there are particular risks associated with using AI in the context of employment law and employment disputes that should be carefully considered by individuals and organisations alike.
Settlement agreements
It is common for employers to offer their employee a “settlement agreement” to resolve disputes and avoid lengthy legal processes, such a redundancy consultations, performance improvement plans or disciplinary procedures.
A settlement agreement is a legally binding agreement that an employee enters into with their employer to waive any claims they might have against their employer in return for some kind of consideration, usually a sum of money and which can provide a convenient and discreet way for parties to draw a line under matters
AI and confidentiality clauses in settlement agreements
It is common for settlement agreements to contain confidentiality obligations to ensure that the circumstances of the departure are not discussed publicly.
The confidentiality clause will generally require you to make promises that you have and will continue to keep the terms of the settlement agreement confidential and that you will not bad mouth your employer after termination. Sometimes these provisions are mutual so that your employer makes the same promises to you and may be retrospective (ie: for the employee to confirm they have not published or made adverse comments about the employer already).
If you have been relying on generative AI platforms for legal advice about your workplace issues, you may, inadvertently, be in breach of these confidentiality obligations. This is particularly true if you have been sharing details of the dispute with the AI platform, including names, places and dates.
Uploading confidential information or documents into an open-source AI tool is to place this information on the internet in the public domain.
In contrast, speaking to your legal adviser about the dispute will not put in you in breach of these obligations as solicitors owe their clients an ongoing duty of confidentiality. Speaking to your legal or professional adviser is often explicitly carved out of the confidentiality clause in a settlement agreement.
Consequences of giving a warranty that is untrue
If you have breached your confidentiality warranties by sharing confidential information with generative AI, your employer may argue that it is released from its obligation to pay you settlement monies. This could potentially leave you without legal recourse to pursue your employer for any unlawful treatment you may have suffered and with no compensation for the treatment or your agreement to waive those rights.
Although using AI to assess your legal rights may seem like an easier and more cost-effective route than seeking legal advice, it does not come without its risks, particularly when it comes to settlement agreements.
Expert legal advice from Tees
If you are an employer or an employee involved in a workplace dispute, Tees’ expert employment lawyers will ensure a practical approach that is grounded in the law to achieve your desired outcomes. Get in touch with us today, and we will help you to understand the full picture.
