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ChatGPT and co-determination

According to the Hamburg Labor Court (decision of January 14, 2024 -24 BVGa 1/24), neither specifications for the use nor the use of ChatGPT and comparable tools via private accounts are subject to co-determination under works constitution law.

Facts of the case

The works council of a global medical technology manufacturer wanted to obtain a temporary injunction to prohibit the use of ChatGPT and other artificial intelligence (AI) by the workforce and to prohibit the employer from making the relevant information available on the intranet.

The employer allowed employees to use AI as a tool at work on a voluntary basis via private accounts and at their own expense. The employer's AI guidelines state, among other things, "Let's use generative AI as a new tool to support our work."

ChatGPT and other generative AI systems are not installed on the employees' computer systems. The tools are used via a web browser and only require the creation of an account on the respective manufacturer's server.

Employees who wish to use the AI programs must create their own private accounts. Company accounts are not provided. Costs must be borne by the employees. The employer has no knowledge of which employees have created corresponding accounts, when, in what context and to what extent or with what information the respective tool is used.

In an email dated December 18, 2023, the works council called on the employer to block the other programs in addition to ChatGPT and pointed out that the use of AI-based tools and software should be prohibited until a corresponding works agreement on the subject of AI had been finalized. The documents published on the intranet on the use of AI were to be removed. Co-determination rights pursuant to Section 87 (1) No. 1 (conduct of employees in the company), No. 6 (processing of personal information) and No. 7 (mental stress of employees) of the Works Constitution Act (BetrVG) are affected in this respect.

Reasons for the decision

According to the Hamburg Labor Court, the works council has no co-determination rights in the present case.

Any instructions published on the intranet regarding the use of ChatGPT and comparable tools fell under the co-determination-free working behavior. These are merely instructions concerning the manner in which work is performed. A right of co-determination pursuant to Section 87 (1) No. 1 BetrVG does not exist in this respect. Therefore, there is also no corresponding right under works constitution law to have the documents removed from the intranet.

Section 87 para. 1 no. 6 BetrVG was also not violated. Any data processing and the associated monitoring pressure was not caused by the employer, but by third-party providers. The employer already had no access to their data. With regard to the web browser used to access the AI, which records usage data, a group works agreement already exists.

Since the works council had not submitted any information regarding a specific risk to employees due to the use of AI, the Labor Court also denied a right of co-determination in this respect pursuant to Section 87 (1) no. 7 BetrVG.

Practical tips

Employment law proceedings relating to the use of AI in working life will increase. As far as can be seen, the first "co-determination decision" in this respect has now been issued by the Hamburg Labor Court. Ultimately, however, the use of new technologies can also be handled with the existing legal tools. It is obvious that if the employer - in contrast to the facts of the case - provides its own accounts with corresponding access and evaluation options, the present case would have to be assessed differently. Depending on the design of the tool used, the co-determination provisions under works constitution law would then apply in the same way as, for example, with the introduction of Microsoft Office 365 (see, for example, BAG March 8, 2022 - 1 ABR 20/21).

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