Can an AI make decisions about hiring, promoting, or quitting?

According to Swiss employment law, the use of artificial intelligence (AI) in personnel decisions such as recruitment, promotion or dismissal is generally not prohibited. However, such use is subject to various legal barriers, in particular in the area of data protection, personal protection and the duty of care under employment law.

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1. Data protection

The automated processing of personal data by AI — for example to evaluate applications or to analyze performance data — must be carried out in accordance with data protection regulations. In principle, data processing in an employment relationship is only permitted in accordance with Art. 328b OR insofar as it is necessary to assess the suitability of employees for the employment relationship or to carry out the employment relationship. The principles of proportionality, earmarking and transparency must also be respected. According to Art. 21 DSG, a fully automated decision that has significant effects on the data subject (e.g. termination) is only permitted under certain conditions, such as if it is made with the express consent of the data subject. However, it has not yet been legally clarified whether such consent can be legally given at all within the framework of the employment relationship based on Art. 328b OR.

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2. Prohibition of personal infringement decisions

Employers may not make decisions that violate or discriminate, for example on the basis of gender, age, origin or other protected characteristics. Such discrimination may violate the Equal Opportunities Act (GlG) or general personal rights. When using AI, there is a risk that they will make such frowned upon decisions. The employer is liable for decisions that violate personal rights even if they were made by AI.

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3. Employer's duty of care

According to Art. 328 OR, the employer is obliged to take the legitimate interests of employees into account and to fulfill its duty of care. This also includes making decisions by the employer not arbitrary or opaque. The use of AI must not result in workers' rights being curtailed or treated inappropriately.

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4. Freedom of contract and protection against dismissal

Swiss employment law generally provides freedom of termination as long as there is no abusive dismissal within the meaning of Art. 336 OR. However, if a dismissal is based exclusively on an AI decision, without human verification, this could be qualified as abusive, particularly if the decision is opaque or violates personality.

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Conclusion:

Within the framework of Swiss employment law, AI may be used to support personnel decisions, provided that employees are informed about this. A completely automated decision to hire, promote or dismiss without the employee's consent is prohibited and is legally problematic even with consent, particularly if it is made without human review. Employers must ensure that AI-based decisions are made in accordance with data protection regulations, non-discriminatory and in compliance with the duty of care.

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MLaw Simon Hampl

solicitor

SAV Employment Law Specialist Lawyer

Social security specialist with federal certificate

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