It is already notorious that nowadays artificial intelligence can manage a wide range of aspects of a company.In this context, the most obvious critical aspects are evident when artificial intelligence is invested with the “responsibility” of making decisions like humans, which have a huge impact on the life of the company and its employees. In fact, many cases have recently come up in the media where algorithms are called upon to make decisions automatically. For example, the fortunes of investments, product lines and even making decisions on part of the human resources department, deciding who to employ and who to dismiss. Sometimes these decisions are wrong and can cause huge damage to all involved. In particular, concerning the field of employment law, many media outlets recently reported on a famous e-commerce corporation that relied on the software to collect data on employee productivity. It decided independently to lay off three hundred employees who were found to be below the “ideal” standards on the software. But even algorithms can make the wrong decision. In fact, we cannot forget that artificial intelligence is not human, however it is created and programmed by humans based on our commands and criteria as well.This is demonstrated by the fact that “artificial dismissal” is potentially susceptible to no less challenges than “human dismissal”, since for example, in measuring worker productivity the algorithm may not have taken into consideration some factors that are typical of work life, such as injuries, work breaks, excusable errors, requests for clarification during the course of the work, permits and external causes etc.
And here too – as in other areas of law – the problem arises again: “Who responds when the machine is wrong and produces unjust damage?” After the dismissal, if it is verified that the software has made the wrong calculation, who is responsible for the decision taken automatically by the computer, bearing in mind that perhaps the latter is not owned by the company nor is it located therein? On this point, we believe that in labour law the solutions already adopted in the field of civil offences are not completely exhaustive. Currently, in fact, the software must be treated equally and understood as a thing that can form the subject of rights pursuant to art. 810 cod. civ. This has significant repercussions on the level of civil offence. If, in fact, software is sold and causes damage due to its “manufacturing” defect, the manufacturer will be liable for the damage caused by a defective product pursuant to Articles. 114-127 of the Consumer Code, both the seller, also private, as a guarantee for defects of the thing sold pursuant to art. 1490 cod. civ. and again if the software, even if functioning correctly, causes another’s unjust damage under the civil law profile, the c.d. objective liability for the matter pursuant to art. 2051 cod. civ. However, as anticipated, in the case of illegitimate dismissal the situation is different. In fact, if we think about it, artificial intelligence does not directly cause damage to the former employee, but is rather mistakenly placed as the basis of the employer’s expulsion order. Therefore, in this case the decision of the software is the juridical fact which, subsequently, the company lays at the foundation of the legal (illicit) act. This with the consequence that in case of “machine error”, the remedy will be that of the “classic” illegality of the dismissal due to the absence of the fact attributed. On this point the Court of Cassation observes, in fact, that the notion of “non-existence of the disputed fact”, referred to in art. 18, paragraph 4 of the Workers’ Statute, includes the hypothesis of the subsistent fact but without the character of illegality (Cass. Section Lav., 17 May 2018, n.12102, in Civil Justice Massimario 2018; also Cassation Civ., No. 13383 of 2017; Civic Court, No. 29062 of 2017). It follows the hypothetical non-existence of the company’s right to proceed with the dismissal, but no objective liability according to the rules of common law.
Dignity Decree: Refiections on Autonomy and Subordination
The debate, in these recent months, is open to the stability of work to which the Dignity Decree intends to focus on in the face of the fiexibility that, companies instead require. In this regard, in the legislative interventions of the last 15 years which have affected the legislation sector, self-employment is viewed with great disfavour. The collaborative relationships are presumed to be fraudulent and are requalified on the basis of revealing indications, regardless of the ways in which they are carried out in practice. The employment relationships were instead incentivized both through relief of social security contributions and by weakening the protection of the worker in the event of dismissal. The result of this system is contradictory because, by forcing the links of the employment also labour relations that the parties themselves would prefer more dynamic or free from rigid forms, the organizational structure of the companies is restricted. On the other hand, once brought back to the employee’s job any type of relationship within the company it was decided to make it temporary. Yet the same conclusions would not be reached by reading Art. 1 of the Constitution, which refers to any type of work: not only the subordinate, but also entrepreneurial, professional and autonomous.
The equal dignity of all forms of work thus becomes a constitutional precept. Therefore, having regard to the effects of a constitutionally oriented interpretation of the discipline of the employment relationship, it is necessary to point out that from a series of rules of the Constitution we see that the employment contract can be constructed as a contract of an associative nature in which the employer and providers pursue, not the same interest, of course, but not necessarily opposed purposes, but a common purpose that is concretized in the interest of the company; when it comes to this, then it is possible to conceive how the recess is given in so far as it is in function of the interest of the company (C. Grassetti, in “Proceedings of the Conference on Protection of Freedom of Labor Relations “). Therefore, it would be necessary to reestablish labour law by abandoning the culture of the subordinate employment relationship as the only guaranteed form and leaving room for self-employment even within the enterprise, according to a more complex system where the interests of the parties are not opposed, but converging towards the common goal given by the interest of the company. At the end of this mind you, is third respect both to the worker and to the employer, and becomes a parameter of legitimacy and good faith for the measures adopted by the latter. Where the company must be understood as a working centre within the framework of reciprocal rights and duties oriented towards the common purpose of the business that the legislator has not defined, meanwhile it has defined the company as a complex of assets organized by entrepreneur for its business. Indeed, it seems natural to conclude that the enterprise of the future will probably be characterized by the prevalence of self-employment within the company, but with this it will remain firm that the employment relationship – whether autonomous or subordinate – cannot be resolved arbitrarily, but is recognized as legitimate only if it is exercised on the basis of the interest of that community of work which is the enterprise, and on the other that the employment contract – individual or collective even in the teaching of the positions – is constructed as a contract in which the employer and the lenders pursue a common goal that is achieved in the interest of the company.