Last reviewed 6 February 2019
Towards the latter part of 2018, a story concerning the practice of microchipping staff cropped up in UK newspapers. Rather than being brushed off as a marketing strategy for the firms producing such technology, the chatter around the story grew so loud that both the CBI and the TUC released public statements highlighting their concerns. So rather than sounding like something more familiar with a science-fiction film, could employers be making use of microchipped staff in the future?
A company in Sweden has implanted microchips in over 4000 individuals over a five-year period, allowing the technology to be used instead of scanning separate objects, such as key cards and train tickets. In talks with the Sunday Telegraph, it was disclosed that the company had been speaking to a UK firm about using microchips for their workers, allowing them to “set restrictions for whoever”.
In response, the CBI and TUC revealed their concerns over the possible greater restrictions to, and potential breaches of, workers’ rights due to the ever-increasing use of technology within workplaces to manage and control employees. Their concerns were that microchips implanted within staff members would lead to even greater powers being exercised by employers over their employees.
While similar technology is being used in other countries, including the United States, will it ever become a reality for workers in the UK? It is, in general terms, within the power of employers to establish their own workplace rules and this encompasses rules around microchipping staff or implanting tracking technology in workers. Workers do, however, have an overarching right to privacy under the European Convention of Human Rights which is fundamental. This right can only be restricted by workplace rules where the restriction is necessary and is proportionate to the business needs.
Businesses are unlikely to find that a blanket rule requiring mandatory microchipping will be considered a necessary restriction on their employees’ rights to privacy. There may be some scenarios where this is the case, however, such as where microchips are necessary for the covert tracking of employees undertaking work in dangerous situations; an uncommon set of circumstances unlikely to be found in many UK workplaces. They are also likely to struggle on the argument that microchipping is a proportionate way of meeting their business needs, especially where the needs identified are to monitor staff or provide them with workplace access. There are a wide range of methods available to employers to meet these needs, such as clocking in and out machines, security passes, time sheets and CCTV monitoring, meaning a microchip is an unnecessary step at this time.
Due to the potential finding that mandatory microchipping will breach the rights of employees, can it be said that businesses will introduce voluntary microchipping where it is a discretionary choice for each individual worker to have technology implanted or not? While this does not have the implications on privacy that a mandatory requirement would, there are practical and cost factors which make a voluntary scheme unlikely. For example, if some staff use microchip scanning to register their arrival at the workplace, while others use different technology to scan in and out, businesses will need two scanners placed at every entrance and two systems to record the information. Not only will this increase the costs of monitoring staff, it may double administration time. There will also have to be two sets of training on internal systems and potentially increased administration time to collect, and review, records. Rather than being a positive step for businesses, having some microchipped volunteers could be more of a burden than remaining with tried-and-tested systems.
Regardless of the potential downsides, businesses may want to move forward with a voluntary microchipping scheme. It’s not as easy as asking for volunteers however, and plenty more considerations will have to be taken into account by businesses. For example, there is a question over who will foot the bill for the microchips. In countries where the microchips can be used for matters outside of the workplace, it may be that employees choose to pay to be microchipped as they will receive a benefit elsewhere. Where the microchip will only be useful at work, employees may be reluctant to pay the costs unless these are reimbursed by their employer. How this payment occurs is also an important question because any deductions from pay will, as always, be subject to National Minimum Wage rules. Where the business pays for the microchip, it will need to be determined whether this is classed as ”company property” and, if so, what happens to the microchip when the employee leaves? In normal cases, it is a requirement for employees to return their company equipment during their notice period or they could face a pay deduction, where there is an appropriate deductions agreement in place. Can a microchip be removed and returned and, where it can, will employees agree to undertake the procedure required to do so? It will also need to be checked whether the security rights and access allocated to an individual’s microchip can be ”turned off” when their employment ends. Businesses may find that a greater security risk is created by forgotten microchips or additional time is needed to update systems each time a member of staff leaves.
Increased employee monitoring will cause more personal data to be recorded and handled by businesses. Under the Data Protection Act 2018, and the European General Data Protection Regulation (GDPR), businesses will have to ensure their microchipping systems are compliant with data protection obligations. Consent is unlikely to be an appropriate lawful basis for carrying out this type of processing due to the disparity between the parties; making it questionable whether consent was ”freely given” if monitoring through a microchip is a requirement for the job role. Employers will be required to identify their lawful basis and ensure any data collected through microchips is necessary and only retained for as long as the data is required.
Whether microchipping is set to take UK workplaces by storm remains to be seen. Similar, but less intrusive, monitoring measures are being developed by employers, such as Amazon’s plans to introduce a staff wristband that helps guide employees’ hands to the right items on the warehouse shelf. As technology continues to develop, in time microchipping may not be such a substantial leap into the unknown.