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Microchipping: the future of employee surveillance?

Inspired by the initial move to microchip employees by a firm in Wisconsin last year; as many as 150 employees in the UK have already been fitted with microchip implants.

As technology continues to impact the way we all work, there may be merits to the rumoured introduction. That said, there are significant ethical and legal obstacles to manoeuvre, should any employer decide this is the method of surveillance for them.

Purpose of microchipping employees

At this stage, it is unclear to what extent the microchips could be used. For those who have already taken the plunge, it effectively replaces their ID card to access buildings, stores computer passwords and allows employees to purchase snacks; much in the same way as using a contactless credit or debit card.

It is also claimed that the chips can replace house and car keys, store train and bus tickets and might even be used in the future in place of a passport. They are being heralded for their ability to restrict access to certain data, which would no doubt be advantageous to certain limited industries such as the military.

It would appear, therefore, that if an employee did consent to the procedure, which involves surgically implanting a rice sized chip between the thumb and forefinger, it could streamline the working day. Perhaps in 20 years' time when we are all fitted with these chips, we will look back upon the current scepticism and laugh.

In order to get there, however, there are obstacles for the manufacturers and employers to consider. Most of the current commentary likens this form of surveillance to dystopia; some big brother landscape in which every movement an employee makes is watched. Perhaps an exaggeration, but there is no doubt this technology could be capable of GPS monitoring; after all it is the same technology used to track down missing pets. Indeed, any tracking of this kind poses a significant privacy concern for individual employees.

It appears that this technology may be much more suitable for some industries than others. If a surgical procedure is going to be required to insert a chip to replace an ID badge, a password, or a swipe card, employers should really consider what problem they are seeking to address with this – perhaps one that does not exist?

Legal issues

The key issue here is privacy. Depending on the extent of the use of the chip, sensitive personal data could find its way into the hands of an employer, or third party.  Any employer should clearly identify the proper purpose of the chip and take into account what sort of data they should and should not have access to, and how they then use, store and process it.

In order to provide the additional security, restrict access and boost productivity (if that is the intention of this method of surveillance) the personal data collected will be susceptible to cyberattacks. Employers will need to ensure that the chips are secure and that they are complying with GDPR throughout the lifespan.

Another issue is liability for injury. Employers should use a microchip implant agreement with their employees to govern the responsibilities of employee and employer. While surgical risks are likely to be low, it will no doubt fall to the employer to indemnify the cost of any follow-up procedures.

But what about if the employee decides to leave the business or is dismissed? Who will be responsible for its removal, or is there a scenario where the chip can be transferred for use by another employer? All of the questions surrounding the respective responsibility of the parties would need to be bottomed out in an agreement at the outset of the employment relationship.

Back to the future

Whilst it may be accepted that employees must accept a degree of curtailment to their privacy while they are at work, the extent of employee monitoring has recently come under the microscope of the European Court of Human Rights.

In the case of Barbulescu the ECHR decided that the Romanian courts had failed to strike a fair balance between the opposing interests of an employer and an employee who was dismissed after the company monitored his use of an instant messaging account.

To introduce microchipping against a backdrop of support for tighter controls on workplace monitoring would give an entirely new meaning to “getting under employees’ skin”. Any arrangements like this will require exceptionally thorough due diligence and balance of the various considerations and interests, and as mentioned an employer considering such steps should really think about what problems they are looking to address and whether this can be achieved in a more proportionate manner.

Contributor: Laura Collins

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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