If an entrepreneur decides to use a robot in the workplace, the entrepreneur should not only look at the use of the robot in the workplace in terms of potential economic benefits. Entrepreneurs should also be interested in the legal aspects of its actions, especially in what regime they will be liable if, in cooperation with a robot or within a robot’s own activity, damage or other harm arises in the workplace. In this article, we assess the legal aspects of robots at the workplace.
Legal status as a main condition
If the employer considers that it is economically advantageous for him to use the robot in the workplace, i.e. that the robot is able to perform certain tasks better and at a lower cost than the same tasks would be performed by man (employee), this employer should not be content only to the economical point of view. In addition to cost savings, employers (and, indeed, employees) should be interested in what regime they will be responsible if they injure a person’s health or property when working with a robot.
Obviously, the employment relationship, like any other legal relationship, has its obligatory elements – subject, subject and content. In this particular case, the subjects of the employment relationship are the employee who undertook to work in the given employment relationship and the employer, i.e. the person for which the employee has undertaken to work in the basic employment relationship. The Czech Labor Code implies that the employee is always a natural person, while the employer can be both a natural person and a legal person. The performance of dependent work as defined in Section 2(1) of the Czech Labor Code is then the subject of this relationship and the mutual rights and obligations of the employee and the employer are its content.
However, the question is: In what legal relation to the employer and in relation to employees is the robot involved? It is clear that it cannot be content, as it is only the mutual obligations of the entities. Nor can it be an object, since that is the performance of dependent work. It remains to be determined whether the robot can be an entity – an employee.
Although, in view of the increasing trend in the use of robots in the performance of work, it is argued that, given the autonomy and level of artificial intelligence, robots should be granted special electronic status, or that the legal personality of robots should be based on fiction theories even if they should be so-called semi-personalities – persons with partial legal personality under French law, we are not convinced of this attribution of legal personality to robots as a suitable solution. On the contrary, we believe that irrespective of the level of artificial intelligence and ability of each robot, robots should continue to be seen as legal things in the wording of Section 489 of the Czech Civil Code in order to maintain legal certainty. Thus, if a robot is what is different from a person and serves the needs of people, it is clear that within a labor-law relationship the robot can never be their subject.
Material liability for damage caused by the robot in the workplace
Given the above conclusion, when a robot, as a matter of law in the employer’s workplace, causes damage to an employee, or vice versa, when an employee causes damage to the employer as the owner of the robot by damaging the robot, it will be possible to apply, from the point of view of labor law, part eleventh of the Czech Labor Code, which regulates the liability of both subjects of the employment relationship.
In practice, there may be situations in the workplace on which will be difficult to apply to the Czech Labor Code, as the damage will be caused to the employer by the robot without the fault of the employee, i.e. without violating his / her work obligations. In addition, it is not unusual for persons different from those who have an employment liability to be present at the employer’s workplace, whose relationships with the employer or employee are governed by contracts other than employment contracts, or whose relations with the employee and employer are not contractually regulated. What about a situation where a robot causes damage to health or property to those who are not covered by the Czech Labor Code?
Subsidiarity of the Czech Civil Code
It has been said before that, despite the lack of a legal framework for human-robot cooperation, it is necessary to build on existing legal standards. The key to resolving this situation will then be Section 4 of the Czech Labor Code, which enshrines subsidiarity in the application of the Czech Civil Code where the Czech Labor Code cannot be applied.
If we begin from the above assumption that a robot is a thing, The Czech Civil Code, in the third head of its fourth part, regulating the issue of obligations from torts, contains several facts, under which the situation when a robot causes damage to a person other than an employee in the workplace could be subsumed. However, their application is not without problems.
Starting from the thesis that a robot cannot be the subject of employment relations, and more particularly of private relations in general, the application of Section 2914 of the Czech Civil Code, which refers to damages in the event that it is caused by an agent, employee or assistant used by a person obliged to perform a particular activity, can be ruled out at the outset. Application of this provision would only be envisaged if the robot will be recognized as a person, which is not true yet. Therefore robot cannot be determined as an agent, employee or assistant.
The situation is different in the case of the application of Section 2936 of the Czech Civil Code, which stipulates in the first sentence that who is obliged to do something to someone using a defective thing (in this case the robot) will compensate for damage caused by the defect. This provision is then completed by Section 2939 (2) of the Czech Civil Code, according to which the person who manufactured or distributed the thing on the market will be liable for damage, jointly and severally with the obliged person. Taking into account, for example, restaurants where the service is provided by robots. It is possible to imagine a situation where the robot scalded the customer by a hot drink due to its defect, and the restaurant owner (employer) will be jointly and severally liable for damage with the robot manufacturer.
How to proceed in a situation where the incident does not arise due to a robot defect, but as a consequence of its factual nature (internal cause)? In this case, in our opinion, it is possible to apply the provisions of Section 2937 of the Czech Civil Code, according to which if the robot (thing) causes damage by itself, it is obliged to compensate the injured person who supervised the robot and if such person cannot be identified, then the owner of the robot, unless it proves that proper supervision of the robot has not been neglected. However, this provision cannot be applied without further, as there is no general agreement on its content. It is unclear whether this is an objective liability with the possibility of liberation or a subjective liability where the fault is represented by a lack of proper supervision. According to the prism of Section 2895 of the Czech Civil Code, it is the strict liability only in the case where it is explicitly stated. We supposed logically to the conclusion that it is subjective liability.
Finally, the application of the provisions of Section 2924 of the Czech Civil Code, concerning damage resulting from operational activities, can be used when solving the question of liability for the robot in the workplace. According to this provision, who operates a business or other equipment used for gainful activity is obliged to compensate the damage resulting from the operation of this activity, whether the damage was caused by its own operational activity or by the things used (robot). The operator can then be relieved of liability, provided that he has taken all reasonable care to avoid damage. Even in this case, it is not clear whether this is an objective liability, which is also settled in settled case-law, (eg. the decision of the Czech Supreme Court file No. 25 Cdo 3186/2010), or subjective liability, as is clear from the explanatory memorandum to the provisions of Sections 2924 to 2926 of the Czech Civil Code. In this case, we have the opinion that this is an objective liability.
Although the robot has many abilities that a person as an employee will never possess, we have the opinion that for the current legislation, the robot in the workplace is a more responsibility for the employer rather than a prototype of the “ideal employee”.
Therefore, any employer considering the use of robotic power should carefully think whether the cost per employee saved by using the robot outweighs the risks of this alternative. In our opinion, the existing legislation does not guarantee employers the sufficient degree of legal certainty that human-robot cooperation requires, especially as regards of liability in the event of injury or damage of property.
We suppose that the use of robotic power or even autonomous robots in the workplace will mean a certain risk, until a special legal framework will be established for this kind of the human-robot cooperation. At least establishing a special responsibility facts of case in Czech Civil Code, from which it will be clear at first sight whether the employer’s liability for the robot is subjective – considered as liability for a thing under Section 2937 of the Czech Civil Code – or objective – assessed as liability for a thing under Section 2937 of the Czech Civil Code.
Having regard to the foregoing and to the legal character of subjective and objective liability, we rather tend to believe that liability for damages caused by robot should be considered as the objective liability, in particular in relation to the compensation of claims of potential victims and of the character of use of robots at work and business.
If you have any questions regarding the matters mentioned above and the current legislation, we are at your disposal. Do not hesitate to contact us.
Mgr. Jáchym Stolička, junior lawyer – firstname.lastname@example.org
Mgr. Jakub Málek, partner – email@example.com
Eliška Vetýšková, legal assistant – firstname.lastname@example.org
30. 08. 2019