Is it ethical or even lawful to microchip your staff?

This is a question we never thought we'd ask, but after US software firm Three Square Market announced that they had plans to use what is termed as near-field communications' or NFC technology not to track packages but to track their staff, then we have to examine both the legal implications and the moral question of this use of technology in the workplace.

NFC is commonly used in microchips for contactless credit cards. To be fair to Three Square Market, their plan is to implant microchips about the same size as a grain of rice into the hands of willing employees (it's important to point out that all the employees are volunteers and nobody has been coerced into complying). They say it will help them pay for food in the company canteen, open doors, log into their computers and even use office equipment such as photocopiers with the wave of a hand. This workplace Jedi mind trick may seem completely harmless at first glance, but unsurprisingly it's caused an absolute furore in the States and around the world.

Getting consent

We've come to terms with microchipping our pets, and in fact many animal welfare campaigners are pushing for it to be mandatory so that owners of abandoned or abused animals can be traced. But the impact of microchipping humans opens up a huge can of ethical worms and raises some fundamental questions such as the impact on your personal privacy, the consequences of refusing to be microchipped by your employers, and what happens once you leave a position with the microchip still in you. That's without the problematic question of tracking peoples' movements without their consent, exactly what type of information is being stored on those chips (and we're into GDPR territory here, too), and what kind of safeguards are put in place (as well as how those safeguards are enforced).

While the current microchips being looked at don't yet have GPS tracking ability, it's not going to be long before such chips are available.

We already have wearable technology, though...

There is plenty of wearable tech on the market, from smart watches through to clothes that incorporate a battery of sensors to send medical data to doctors. However, there is one fundamental difference between these and microchips - you can't take a microchip off. Once it's in, it's in, and it's this permanency that is concerning some watchers.

Employers already have the right to keep an eye on their staff during working hours and using other data gathering methods such as CPR checks, credit checks and the use of CCTV, in-cab monitors and vehicle trackers (for fleet drivers and delivery personnel). However, this data is subject to strict legislation and there are EU and UK guidelines and laws to state exactly how their data is collected and stored. This legislation has been updated under GDPR, as the previous loopholes concerning the collection and storage of digital data have now been firmly closed.

We're crossing a whole different rubicon when it comes to microchipping, though. Admittedly, the current use of microchips is limited only to those employees who have actively volunteered to take part in trials. The chips have finite lifespans, and their use is limited to interacting and accessing other technology within a very confined workspace.

It's not HR you need to convince...

The expansion of the use of microchips is going to take some time, not least because it's going to take one heck of a PR exercise on the part of employers to persuade a very dubious workforce of their relevance and usefulness within the workplace. Trying to force employees to accept microchipping could backfire dramatically on any company that tries to do it, regardless of whether it's seen as a positive move by the instigators or not.

Employers have to inform staff if they intend to monitor them, and must consult with staff on any changes to security or other monitoring processes. They must ensure that the process is necessary for the good of the company, will not infringe on workers' rights or their privacy, and is not (unless there are exceptional mitigating circumstances) a condition of employment. In short, bosses are definitely going to have to get workers' full consent before they break out the microchips.

Is it legal to microchip your staff? Well, it's not illegal as long as strict adherence to data protection and human rights laws is practised, it's voluntary, and is fully consensual. Is it moral? That's a whole other question, and one that will be argued about for years to come.

If you think your workers' rights are being ignored or you feel that your employer is encroaching on your right to privacy, contact an employment law specialist and discuss your case in complete confidence today.

Steve Judge is a Partner and Head of the Employment Department and can be contacted on 01323 434416 and by email on sj@stephenrimmer.com