Background:

The claimant is a black male of African descent. He commenced work as an Ubereats food delivery driver on 29th November 2019. The claim relates to the introduction of Microsoft facial recognition software. It requires drivers to take real time photograph of themselves for verification when using the app.  The photograph is checked against the account picture. It is prerequisite for accessing the app and accessing the work.

The basis of the claim is that the facial recognition software places people from ethnic minority groups at a disadvantage regarding false positive/negative results. The claimant was notified in April 2021 of his permanent suspension from the platform relating to ‘sharing’ his delivery partner account.  This was due to failing the facial recognition check.  The claimant noted that the ‘algorithm’ is racist and needs to be addressed.  The respondent reiterated the decision to terminate the relationship; he was told the decision to deactivate his account was maintained.

The claimant asserted that the requirement of Real Time ID check, the need to undergo facial recognition checks, the deactivation based upon the checks, the practice of deactivation without human review and the requirement of communication via message without telephone consultation were all indirectly discriminatory against the claimant on the ground of race.

The respondent stated that there was ‘human error’ and a separate flagging of unusual use of the respondent’s systems.  The claimant’s access was restored in September 2021.

Outcome:

The respondent sought to strike out the claim being brought by the claimant. The Tribunal found that it would be unfair to draw any summary conclusion about the application of any provision, criterion or practice (PCP) or the causal connection between such PCP and the possible disadvantage suffered.  As a result, the claim would undoubtedly be fact sensitive and based upon the evidence. The Tribunal would have to make a holistic assessment of the evidence. Therefore, it would not be possible to say that the claims have little or no prospect of success and the strike out application was dismissed.

Practical Guidance for Employers:

This case demonstrates how the growth of technology, such as AI, will inevitably have an implication on the relationship between employee and employer.  In this case it is through the use of facial recognition software which does have the possibility of working to a disadvantage based upon protected characteristics. The use of such technology must be examined against the impact that it would have on the particular protected characteristic to ensure that, as an employer, you are protected against potential claims.

The full case is here:
https://assets.publishing.service.gov.uk/media/62dab66b8fa8f5649dbef494/Mr_P_E_Manjang_-v-_Uber_Eats_UK_Ltd___Others_-_3206212_2021_-_Preliminary_Judgment.pdf