Regulating Algorithmic Management at Work in the European Union: Data Protection, Non-discrimination and Collective Rights

Abstract

In recent years, algorithmic management practices have been widely adopted by employers to monitor remote work, analyse how applicants behave during job interviews, rate worker performance and calculate wage adjustments. As a result, the condition of workers being subjected to the upstream authority of managers has intensified. Employment protection legislation recognizes the importance of curbing the employer’s unilateral discretionary power by deploying several controlling factors. However, the traditional guardrails have now been displaced by the transformative impact of data-driven technologies. As a response to this challenge, several measures implemented by the European Union (EU) could be pragmatically adapted to curtail the expansion of artificial intelligence-based management prerogative. By applying a multidimensional, anticipatory and participatory approach, this paper integrates substantive and procedural rules that contribute to rebalancing informational asymmetries within workplaces and assesses the effectiveness of these rules. Examining case law, administrative decisions and legislative developments, it also discusses the mutually reinforcing relationship between data protection and anti-discrimination measures, which renders automated decisions documentable and contestable. In addition to defensive tactics, this article calls for the involvement of worker representatives in co-designing digital human resource policies. As data are relational, collective bodies are uniquely placed to exchange information, raise awareness and bring claims, with a view to preventing the improper use of algorithms. Employer Powers, Data Protection, Non-Discrimination, Co-Determination, Artificial Intelligence, Management by Algorithm, Right to Explanation, Burden of Proof, EU Law, Digital Transformation