Q: I have been reading stories about employees being microchipped by their employers. Is this legal?
A: Stories have emerged recently of employers taking the unorthodox step of microchipping their staff. Although this practice is more commonplace in the USA and Sweden, some UK businesses are already experimenting with this procedure.
Employers typically use these microchips to enable staff to check into work, log onto computers and open secure doors with the wave of a hand. Although the UK legal system remains unchallenged in this regard, there are a number of considerations for you to keep in mind before implementing this in your organisation.
Generally, you are able to set rules on any topic by implementing a workplace policy, however rules must be reasonable and proportionate.
It is unlikely that attempting to force staff into being microchipped will be considered reasonable when tested in court. Staff are likely to argue that any obligation to be microchipped constitutes an invasion of privacy, therefore you will be better served making it optional.
You should also consider if there is a valid business reason for microchipping staff, especially if the main purpose is to monitor arrival and departure times or grant staff access to secure doors. This is because there are already suitable and less intrusive alternatives in place, such as CCTV cameras and electronic security fobs.
Even when microchipping is optional, you should avoid situations where staff are instructed or pressured to comply, as this could result in resignations and potential claims of constructive unfair dismissal. You should also consider any religious or personal beliefs that prohibit the implantation of microchips.
If certain individuals do agree to be microchipped, there is then the question of who pays for the procedure. Given HM Revenue & Customs’ recent emphasis on naming and shaming national minimum wage offenders it would be advisable for you to foot the bill, especially where staff earn national minimum wage or close to it. This would avoid any scenario where your organisation is punished for wage deductions that take the employee’s salary below the NMW.
There is also the risk that using microchips could hinder your ability to comply with the General Data Protection Regulation. So, you must be able to point to a lawful reason for processing any data and make sure this is not kept on file for an excessive period of time.
It is also worth thinking about what happens to the chip when employees leave the business. Other equipment is typically returned once employment is terminated. However, it remains to be seen if the same rules apply to microchips and what rights you have if individuals refuse to have this removed.
The prospect of microchipping does raise some interesting questions, many of which cannot be answered in full before they are tested in court. If you are keen to introduce this in your organisation it would be wise to wait until more is known about the practice, or at the very least ensure it remains optional for staff.