As a US company becomes the latest employer to fit willing staff members with microchips, Pauline Del Monaco discusses the legal implications in the UK

US software firm Three Square Market has announced that it plans to use near-field communication (NFC) technology to make day-to-day tasks easier for its employees.

While NFC tech is more commonly found in things such as contactless debit cards, Three Square Market plans to implant a small chip – about the size of a grain of rice – into the fleshy part of a willing employees’ hands, between the thumb and forefinger. The chips can be used to pay for food in the company canteen, open doors around the building, log in to the computers and even use the photocopier – all with the wave of a hand.

It’s not unsurprising that people would be dubious about the technology. What impact would it have on privacy? What happens if, after being fitted with a microchip, you left that employer? Could the organisation track your every movement?

We have to assume that the technology is akin to microchipping animals, and that the information stored on them can be amended when people change jobs. At the moment, it’s understood that the chips don’t have the capacity for GPS tracking. However, with technology in general moving at such a fast pace, this could become a possibility.

What does this technology mean for employees?

First, while the technology and the methods are changing, it is unlikely that we will lose the employee safeguards we currently have in place. It is more likely that, as with the development of the internet and other wearable technologies (such as the Apple Watch and Fitbits), these will be adapted.

Even now, employers have the right to monitor the activities of their employees via CCTV, checking email and internet usage, and even obtaining information from credit reference agencies or about previous convictions. That said, there is stringent data protection legislation in place that sets out rules on how this should be carried out and how personal information is stored.

As a general rule, where employers intend to monitor staff they should consult them and fully inform them of the arrangements, making sure they are clear that the arrangements are necessary.

An employer has an implied duty of trust and confidence to all members of its workforce so monitoring that is too oppressive, or excessive and unnecessarily intrusive, is a breach of data protection. In some extreme cases it can amount to constructive dismissal and bullying.

While it may be something that is a long way from reaching the UK even if it does become feasible, it seems it will only happen if enough people agree. The microchips are only being implanted into employees who have volunteered to participate, and employers have had to carry out objective impact assessments to be sure that any negative effects are outweighed by the benefits. Companies in the UK will need to be vigilant to both data protection and human rights laws if they use such technology, and will have to back it up with exceptional policies and procedures that employees are made aware of.

Pauline Del Monaco is a solicitor at QualitySolicitors AcklamBond

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  • It would be legal to microchip "willing" employees, just as it is legal to inject dye subcutaneously during tattooing, since the employee is giving consent, however as inserting the chip is, by definition an "invasive surgical procedure" it would currently be illegal if done against someone's will or under coercion, such as threatened job or job-status loss.

    Clearly consent must also be "advised", i.e. the purposes and ramifications of microchipping must be clearly defined and explained, with clear limitations placed on their use.