Artificial intelligence is changing how organisations recruit, manage employees and operate their businesses.
AI tools can now assist with recruitment, customer service, performance analysis, content creation, administration and many other functions.
For employers, these technologies can improve efficiency.
But they also introduce a new question:
What happens when an automated system starts influencing decisions about employees?
The workplace is changing
The traditional workplace is no longer the only model.
Kenyan businesses are increasingly dealing with remote and hybrid work, digital monitoring, platform-based work and AI-assisted operations.
Recent Kenyan legal commentary has identified remote work, the gig economy, workplace monitoring, employee data privacy and AI as areas where employment practices are developing faster than some aspects of the existing legal framework.
This creates a challenge for employers.
Technology may change quickly, but employers still need to operate within existing employment and data protection obligations.
Can employers use AI to recruit employees?
AI can help organisations screen applications, identify candidates and automate parts of recruitment.
But employers should be careful about allowing an algorithm to make important decisions without appropriate human oversight.
Kenya’s current data protection framework places restrictions on certain decisions based solely on automated processing, particularly where those decisions have significant effects on individuals.
This means that businesses should think carefully before allowing an automated system to independently reject applicants, rank employees or make other significant employment decisions.
Employee monitoring and privacy
Digital workplaces can generate enormous amounts of information.
Employers may use software to monitor:
- Login activity
- Computer usage
- Communications
- Productivity
- Location
- Attendance
- Access to company systems
But the ability to collect information does not automatically answer the question of whether, how and why it should be collected.
Employee information is personal data, and employers should consider applicable data protection requirements when implementing monitoring systems.
Employees should also understand relevant workplace policies and the purposes for which information is collected.
AI-generated work creates another challenge
Imagine an employee uses an AI tool to prepare:
- A client proposal
- A marketing campaign
- A report
- A contract draft
- A presentation
- Internal business documents
Who owns the resulting work?
What confidential information was entered into the AI system?
Was client information shared with an external platform?
Can the company rely on the accuracy of the AI-generated material?
These questions show why organisations need more than a general statement saying:
“Employees are allowed to use AI.”
Employers should consider an internal AI policy
An effective workplace AI policy could address:
Approved AI tools
Identify which AI systems employees are permitted to use for work.
Confidential information
Specify information that must not be entered into external AI platforms.
Human oversight
Require appropriate human review before AI-generated material is used for important decisions or external communication.
Recruitment
Establish safeguards around automated screening and decision-making.
Employee monitoring
Clearly define the circumstances and purposes for workplace monitoring.
Accuracy
Employees should verify important AI-generated information rather than assuming that AI output is automatically correct.
Data protection
AI use should align with the organisation’s broader data protection policies and obligations.
The future workplace will require both technology and governance
AI is unlikely to disappear from the workplace.
Instead, organisations will need to develop practical ways of incorporating AI into their operations while maintaining appropriate legal, ethical and organisational safeguards.
Kenya’s regulatory environment is also evolving. The ODPC has been developing guidance around AI and emerging technologies, while broader national discussions are taking place around data governance.
For employers, this means that an AI strategy should not sit exclusively with the IT department.
It may also require input from:
- Management
- HR
- Legal advisers
- Data protection teams
- IT and cybersecurity teams
The key question for employers
The question is no longer simply:
“Can AI make this task faster?”
A better question is:
“Can we use AI in a way that is effective, responsible and legally compliant?”
Employers who address these questions early can reduce uncertainty as technology becomes increasingly integrated into the workplace.
Need assistance reviewing your workplace policies?
If your organisation is introducing AI, changing its working arrangements or reviewing employee monitoring and data practices, legal guidance can help identify potential issues and develop appropriate policies.
Ngigi Mundia Advocates LLP advises individuals, businesses and institutions on legal matters affecting the modern workplace.
This article is intended for general educational purposes and should not be treated as specific legal advice.
