The roll out of the country's vaccine programme now offers the realistic prospect that at some stage this year we will see businesses being able to return to business premises following the disruption of the COVID-19 pandemic. The facilities management ("FM") industry will have a key role in helping businesses to ensure that working environments are ready, with innovation and technology likely to play an important part.
An integral element of any return will be instilling confidence in workers and visitors that buildings are safe to use. Many businesses (and landlords) will look to the FM industry to provide more intensive cleaning operations than before, but against a difficult economic backdrop, there will be pressure to deliver this without substantially increased costs and that is where technology and innovation will come in.
Collaborative robotics ("cobotics") involves the deployment of robots ("cobots") designed for direct physical collaboration with humans in a shared space. They are commonly used for repetitive and strenuous tasks. In cleaning operations, cobots or other robots and autonomous systems ("RAS") might vacuum and clean large areas of flooring, allowing cleaning staff to focus on more high-risk areas or smaller, less uniform surfaces. The use of cobots allows cleaning tasks to be carried out more frequently – often when buildings are unoccupied – allowing deeper cleaning with better coverage and fewer missed areas.
This blog explores the legal considerations for the use of cobotics in FM.
Benefits of cobotics
Cobotics make cleaning operations more efficient and consistent, which helps FM service providers provide both better services but also to analyse data concerning the type, location, and times (and even effectiveness) of cleaning tasks (data which can be shared with clients and occupants of the space as well as other service providers). Longer term, cobotics can reduce operational costs, and increase organisational agility. Frontline workers may benefit from reduced physical strain (as well as boredom!), as cobots take on their repetitive and strenuous tasks, allowing workers to concentrate on other responsibilities such as actually managing the cobots themselves.
Cobotics may also help clients meet broader business objectives, with the data provided by cobots contributing to data analysis that can be used to deliver better user experience and sustainability.
As with any significant business innovation, there are a range of commercial and legal matters to consider in the procurement and deployment stages of a cobotics programme. In addition to practical industry guidance available, we consider the legal considerations below.
The use and development of disruptive technologies raises some legal issues which should be considered and addressed when planning and executing any cobotics procurement. These fall into two broad categories: (1) liability and (2) data challenges.
When deciding whether to purchase or lease cobots to perform any cleaning services, FM service providers need to consider who is responsible if faults or malfunctions occur and who is liable to pay any compensation arising from those faults. The verification of decisions by AI-powered devices is difficult as they are programmed to continually learn, analyse and predict, meaning the transparency and validation of such decisions cannot always be explained or traced back to human error (e.g. incorrect operation or defective programming) or failures in organisational security. Accordingly, it's harder to attribute fault to a particular party, which in turn can create risk and issues in insuring them. FM service providers should consider whether its insurance policies provide appropriate cover for cobots, RAS or other AI-powered devices and discuss with its insurance brokers whether any additional insurance is available.
When negotiating contracts with the manufacturer, FM service providers should consider circumventing the issue of causation, or at least use the opportunity to negotiate and work in partnership with clients and / or manufacturers to clearly allocate and share the risk, to facilitate uptake of innovative technologies. In an ideal world, this would be achieved by: (i) seeking strict liability (without showing fault) and / or appropriate contractual indemnities from the manufacturer for any losses arising from a fault with the cobotics; (ii) restricting liability to clients to cases where either the manufacturer is liable or the FM service provider is clearly shown to be at fault; and (iii) limiting recovery to proven losses, capped at a level to reflect the insurance available or the amount recoverable from the manufacturer. However, in reality, the difficulties FM service providers face in terms of bargaining power within the supply chain mean this may be difficult to achieve.
- Data challenges
Ensuring cobotics operate as intended and that unsolicited or unpredictable behaviours are not accidentally or maliciously produced, is of key importance not only from a liability point of view, but also from a data perspective. Automated machine learning and decision making is achieved by collecting, analysing and processing new and larger volumes of data sources, whether directly from individuals, continuously streamed from other smart devices, or through machine learning itself. There is significant value in the data collected (e.g. personal or commercially sensitive information) which needs to be balanced against privacy, transparency, accessibility and security considerations, resulting in challenges in terms of data protection, data management and cybersecurity.
FM service providers will need to consider how any activities that involve processing personal data will be justified, often in conjunction with clients. Key issues are likely to include: who will have access to the data? The FM supplier, client, landlord and, if the cobots are provided on a licensed basis, even the manufacturer? Also, the purposes for which personal data will be processed will need to be clearly established as will the legal basis for the processing in data protection law. The processing will also need to be transparent and fair.
If the data is going to be shared amongst multiple parties then security is also a greater concern so another important consideration is what organisational, technical and administrative measures are necessary to ensure the use of any data is held in the right place, properly controlled and managed securely.
The access to large volumes of data makes these technologies attractive targets of cyberattack, and the fact these devices are connected to networks increases their vulnerability. Cybersecurity and robust management tools and techniques (e.g. security and incidence reporting and procedures) are a necessary consideration when (i) attributing the responsibility and risk in performing services reliant on cobots; and (ii) deciding how best to address such security issues. This may include consideration of whether further investment in IT technology, improved security policies, procedures, monitoring and reporting standards are required.
Re-evaluating existing contracts
The introduction of cobotics can also be an opportunity to renegotiate existing contracts. Often FM contracts will contain continuous improvement obligations, which cobotics may help to satisfy. The first consideration is whether the existing contractual provisions allow for the introduction of cobotics or RAS, or if a formal change request is required under change control procedure. The data protection and cybersecurity issues outlined above, together with any impact on costs, key performance indicators and how those are structured, will also be relevant considerations that need to be reflected in any changes introduced to existing contracts.
Clients' longer-term objectives around sustainability and improved visitor experience may justify new commercial models or provide the opportunity for FM service providers to enter into partnerships with their clients. Committing to a long-term period of collaboration to achieve shared goals allows FM service providers and clients to share the risks and the reward of cobotics and other RAS.
Other legal matters
The introduction of cobotics and RAS alongside workers will also require changes to duties, training, shift patterns and timetabling, and re-deployment of certain staff as their responsibilities change.
Clearly there are many opportunities and potential benefits of innovative technologies such as cobots. The deployment of cobots is likely to become an increasing feature of FM in years to come. However, there are significant legal and commercial issues that need to be considered when making any decision whether or not to deploy these devices.
How can we help?
If your organisation needs advice on the commercial, contractual or other legal matters involved in introducing cobotics or other innovative technologies to your operations, please do not hesitate to contact one of us, or your usual Brodies contact.