The increased use of AI by job applicants: risks for employers

Employers are reporting a rising number of candidates using artificial intelligence (AI) tools in job applications. Not only has this led to a higher volume of applications, but employers are also reporting concerns that unqualified candidates are being hired for roles after using AI to inflate their skills and performance throughout the application process.

Surveys have demonstrated that just under half of employees surveyed used AI in a job application process. AI may be used by candidates for various purposes. For example, candidates may use it to more efficiently research and gain insight into companies, industries, and market trends. They may also use it to refine CVs and cover letters, ensuring that their CV is not sifted out by the employer’s own AI tool for failing to match particular phrases and key words in the job description. More controversially, employees may use AI to complete tests and skills assessments.

Many employers choose to reject generic and robotic-sounding applications once they realise they have been written with the assistance of AI. Some employers are even using AI-detection tools to automatically screen applications. To prevent candidates using AI in tests, some employers are requiring assessments to be completed in-person or via video call. These measures are, however, not without risk for an employer.

A concerning and more pressing risk for employers is the risk that a candidate has used AI to fraudulently inflate their skills and qualifications or to cheat on a test to secure a role. Upon discovering such conduct, the employer is then faced with the quandary of retaining an unqualified candidate or facing the risks associated with dismissal (which will increase when the Employment Rights Bill makes unfair dismissal a ‘day one’ right).

The unqualified candidate

Using AI to fabricate skills or experience is akin to the employee lying on their CV. Similarly, using AI in a test or assessment would be viewed as cheating. The employer may terminate the employment contract where the dishonesty is significant enough to amount to a repudiatory breach of contract by the employee, entitling the employer to treat the conduct as a breach of trust and confidence bringing the employment relationship to an end. The grounds for dismissal would likely be gross misconduct, misconduct, or misrepresentation. The fact that AI is the cause of the misrepresentation in the recruitment process does not prevent an employer from having to follow their usual processes should they discover the employee has been dishonest in the application process.

Other risks for employers of AI in recruitment

Implementing a strict policy against using AI in job applications may appear to be the solution and has indeed been deployed by some employers. Such a policy is not risk-free if preventing the use of AI places a disabled person at a particular disadvantage compared to other applicants. This could lead to claims for indirect disability discrimination and failure to make reasonable adjustments. Employers may rely upon a legitimate aim (the need for candidates to submit applications written by themselves to demonstrate their own skills) to objectively justify a strict policy against using AI but should tread carefully if a candidate requests to use AI for a reason associated with a medical condition.

Employers should also consider whether they wish to dissuade the use of AI completely by candidates. While its ban may be appropriate for skills tests or assessments, some employers may view experience with AI as a useful skill and may require employees to use AI tools in their roles, thus justifying limited use in the recruitment process.

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