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Knowledge base · AI in HR

May we use AI in performance reviews, promotion or dismissal?

As an aid, yes, but with safeguards. A decision on promotion or dismissal that is based solely on automated processing and significantly affects the employee is in principle not allowed. A scheme for staff appraisal or for the promotion and dismissal policy requires the consent of the works council. From 2 December 2027, AI for such decisions is also a high-risk system.

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No decision without a human

An employee has the right not to be subject to a decision based solely on automated processing that significantly affects them [1]. A promotion, an appraisal or a dismissal should therefore rest with a person who genuinely weighs the outcome.

The works council

For a scheme on the appointment, dismissal or promotion policy and for a scheme on staff appraisal you need the consent of the works council [2] [3] [4]. If you introduce AI that changes such a scheme, put it to the works council.

From 2027: high-risk

AI for decisions on promotion or termination and for evaluating performance and behaviour is on the high-risk list [5], with duties from 2 December 2027 [6]. Before you use such a system, you inform the workers' representatives and the workers concerned [7].

What Trusq bases this on

These released rules are in Trusq and are read again with every publication; if a rule changes, this page changes with it.

  • Workers and their representatives informed AI Act 26

Sources

  1. [1] GDPR Art. 22(1) (General Data Protection Regulation (GDPR), Regulation (EU) 2016/679). Right not to be subject to a solely automated decision that significantly affects someone.
    1. The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.
    Source, retrieved on 3 October 2026.
  2. [2] WOR Art. 27(1), introductory wording (Dutch Works Councils Act (WOR); Dutch law, unofficial translation). The works council's consent is required for the schemes in Article 27(1). Original Dutch text:
    De ondernemer behoeft de instemming van de ondernemingsraad voor elk door hem voorgenomen besluit tot vaststelling, wijziging of intrekking van:
    Source, retrieved on 3 October 2026.
  3. [3] WOR Art. 27(1)(e) (Dutch Works Councils Act (WOR); Dutch law, unofficial translation). Consent is required for a scheme on the appointment, dismissal or promotion policy. Original Dutch text:
    e. een regeling op het gebied van het aanstellings-, ontslag- of bevorderingsbeleid;
    Source, retrieved on 3 October 2026.
  4. [4] WOR Art. 27(1)(g) (Dutch Works Councils Act (WOR); Dutch law, unofficial translation). Consent is required for a scheme on staff appraisal. Original Dutch text:
    g. een regeling op het gebied van de personeelsbeoordeling;
    Source, retrieved on 3 October 2026.
  5. [5] AI Act, Annex III, point 4(b) (AI Act, Regulation (EU) 2024/1689). AI for decisions on employment relationships, promotion or termination and for evaluating performance is listed in Annex III.
    AI systems intended to be used to make decisions affecting terms of work-related relationships, the promotion or termination of work-related contractual relationships, to allocate tasks based on individual behaviour or personal traits or characteristics or to monitor and evaluate the performance and behaviour of persons in such relationships.
    Source, retrieved on 3 October 2026.
  6. [6] Regulation (EU) 2026/1744 Art. 1(40)(b) (replaces AI Act Art. 113, third paragraph, point (c)) (Regulation (EU) 2026/1744 (Digital Omnibus on AI)). The high-risk rules (Chapter III, Sections 1 to 3) apply to Annex III systems from 2 December 2027.
    Chapter III, Sections 1, 2, and 3, with the exception of Article 6(5), shall apply from: (i) 2 December 2027 as regards AI systems classified as high-risk pursuant to Article 6(2) and Annex III; and
    Source, retrieved on 3 October 2026.
  7. [7] AI Act Art. 26(7) (AI Act, Regulation (EU) 2024/1689). An employer informs workers' representatives and the workers concerned in advance about a high-risk system in the workplace.
    Before putting into service or using a high-risk AI system at the workplace, deployers who are employers shall inform workers’ representatives and the affected workers that they will be subject to the use of the high-risk AI system.
    Source, retrieved on 3 October 2026.

Related questions

May software automatically reject applicants without a person looking at it?Does our works council have a right of consent if we introduce an AI tool for HR?Is our AI tool for recruitment, selection or personnel management a high-risk system?May we use AI to track employees' productivity or behaviour?

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This page gives general information based on the text of the law. It is not legal advice for your situation.