Employment law includes many difficult areas where there is a conflict between what may be entirely legitimate concerns on the part of employers as against privacy and other legal rights of employees.
Caution should be exercised and legal advice taken if you are an employer and believe you have a legitimate need to search an employee. Get in touch with me for the reasons described below.
But it’s in the contract
A common mistake by employers is to believe that the way to protect their interests is to include provisions in employment contracts or policies or procedures giving the employer rights or whereby the employee waives legal rights.
The difficulty with this approach is that contracts will invariably be overridden by specific statutory protections or interpretation by Tribunals or courts.
When it comes to intrusive actions like searching employees, breach of an employee’s rights could result in severe consequences for employers. The conduct could constitute an assault or breach of Human rights.
Is it worth putting it in the contract or policies then?
A provision allowing for search should not be considered by an employer as a reason or right to try and immediately enforce a search if the employee refuses. The reason for having such a provision would be that it would assist in taking disciplinary action if an employee refuses to reasonable co-operate with a search, but even in this instance an employer should tread carefully.
Regardless of any contractual or policy right to search, employers should have a good reason to justify asking to search and to be careful about potential discrimination risks.
Where there is a contractual right to search but it has not been enforced in the past then it would be prudent to pre-warn employees that the right is about to be exercised. Employers have to be careful when exercising their right to search an employee because they have an implied duty of trust and confidence towards their employees (a duty which is of course mutual).
Where consent is given, what procedures should apply ?
If an employee or employees indicate they will agree to be searched, care should be taken in the way a search is conducted. The following are important considerations :-
- The search should be conducted by a manager of the same gender as the employee and who has been suitably trained to carry out the search;
- Before conducting the search, the manager should explain to the employee the reason for the search;
- Obtain the employee’s consent prior to carrying out the search;
- The search should be carried out in front of a witness;
- Employees should not be asked to remove any clothing that would expose the employee’s underwear. If there is enough suspicion that a further search is required then the police should be called;
- The search should not be conducted in the presence of other staff or members of the public as this could be embarrassing;
- Except with compelling evidence of wrongdoing, a search policy, in general, should apply to and be enforced on all employees;
- A search of employee’s property should be carried out with care and respect. The employee should be asked to empty things out first such as their pockets or the contents of their bags. If the employee’s property is damaged during a search then the employee may be able to claim it back from the employer particularly where there has been found to have been no misconduct;
- A log should be kept of the search results, particularly where there has been misconduct; and
- The log should be kept confidential and should be monitored by senior staff to ensure its randomness, reasonableness, fairness and consistency.
Ideally a search policy and the procedure should be set out in an employee handbook (if one exists) or be set out with the organisation’s other policies such as its disciplinary and grievance policy.
This is important so that everyone knows where they stand; not just the employees but also the managers carrying out the searches.
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