Does the works council have a say when employees use ChatGPT?

NO, according to the Labour Court Hamburg!

Artificial intelligence (AI) makes working life easier. It is therefore not surprising that companies are keen to utilise the technical possibilities of AI, particularly by means of ChatGPT, to make work easier. However, this is accompanied by a large number of unresolved legal issues. From a labour law perspective, one of the questions is whether a works council has a say in the introduction of ChatGPT. In this context, we were able to obtain the first decision on this issue before the Labour Court Hamburg (decision dated 16 January 2024 - 24 BVGa 1/24).

What was it about?

The employer wanted to allow its employees to use generative AI as a new tool to support their work. They published guidelines on the intranet on allowing the use of IT tools with artificial intelligence at work. The tools were used via a web browser. If employees wanted to use the tools, they had to obtain a private account (in this case: ChatGPT) at their own expense.

The Group Works Council considered the authorization to use ChatGPT in conjunction with the publication of the guidelines to be a gross violation of its co-determination and participation rights. Among other things, they asked on the employer to block ChatGPT and prohibit its use. After the employer refused to do so, the group works council applied for an interim injunction against our client.

Decision of the labour court

The Labour Court followed our argumentation and rejected the requested interim injunction. The applications for injunctions were unfounded, as the co-determination rights of the Group Works Council had not been violated.

There was no violation of Section 87 (1) No. 1 BetrVG. The guideline on the use of ChatGPT falls within the scope of work behaviour not subject to co-determination. It only regulates the manner in which work is carried out. Making new work equipment available is not a part of work behaviour.
The right of co-determination pursuant to Section 87 (1) No. 6 BetrVG was also not violated in this particular case. The use of private ChatGPT accounts does not constitute a technical device intended to monitor behaviour or performance. ChatGPT is not installed on the employer's work equipment, nor does the employer provide company accounts. It is not possible for the employer to monitor private accounts. At most, the browser records that show the actual use of ChatGPT are to be assessed as a technical facility. However, the parties had already concluded a group works agreement on the use of internet browsers.
There would also be no right of co-determination pursuant to Section 87 (1) No. 7 BetrVG. There was already no concrete risk in the present case.

The Labour Court pointed out that the information and consultation rights pursuant to Section 90 (1) No. 3, (2) BetrVG, which expressly mention artificial intelligence, must be upheld. However, Section 90 BetrVG only grants information and consultation rights and no co-determination rights. A possible violation therefore does not justify a claim for removal or injunctive relief.

Conclusion

The labour court sends a relieving signal for the present constellation, both for companies, which can now quickly create legally secure regulations for use, and for employees, who have come to appreciate the enormous gain of efficiency at work. Regulations on the use of ChatGPT can be introduced at short notice with reference to the decision, even if a works council exists. We recommend the introduction of such regulations to provide employees with assistance and a framework for the use of generative AI. This serves to ensure correct, non-discriminatory work products in the company. However, the information and consultation rights pursuant to Section 90 (1) No. 3, (2) BetrVG should be observed in any case.

It should be noted that the decision concerned the special case that the introduction of ChatGPT was to be carried out using private accounts and at the employees' own expense. A different assessment of the legal situation will have to be made when providing company accounts for ChatGPT. It also remains to be seen whether other German courts will agree with the opinion of the Labour Court Hamburg. However, the Labour Court's decision has laid the foundation for further discussions. We will keep you informed about the exciting developments!