Employment law clinic: Searching employees

The Challenge: The managing director of a financial services company has
become nervous about recent security warnings in the City. He has asked the HR
manager to introduce a policy of fully searching employees every time they
enter or leave the building. Charlotte Hamer, professional support lawyer at
Stephenson Harwood, considers some of the legal and practical implications.

There is no absolute right to privacy in English law. There are, however, a
number of issues an employer must consider before introducing a policy on
searching.

Contractual issues

Implied into every contract of employment is the term of trust and
confidence. Carrying out a blanket search of all employees any time they enter
or leave the building could be considered a breach of this because the employer
is demonstrating a complete lack of trust in all of its employees, all of the
time.

Random searching of employees is less likely to fall into this trap but
employers must, nevertheless, demonstrate that the searching is being carried
out for objective business reasons.

A further contractual issue concerns changing the position for existing
employees. Introducing a new policy on searching could amount to a change in
terms and conditions and, therefore, must be introduced in the way that any
contractual change is introduced.

The final contractual issue concerns confidentiality. This centres on the
issue of anything of a confidential nature that is discovered as a result of a
search. Those conducting the search would need to keep confidential any
information ascertained as a result of the search and only pass on to the
employer information relevant for the purposes of the search.

A breach of contract could lead to a claim for constructive dismissal. This
could be a contractual claim – such as wrongful dismissal, unfair dismissal, or
both.

Assault

Assault is both a criminal and a civil offence, and searching employees
could amount to assault if not carried out properly and with the employee’s
consent.

The employer may not be vicariously liable for a criminal act, but those
conducting the search could reasonably refuse to carry out searches that could
lay them open to a criminal charge.

If they had been asked to conduct a search that made them liable for a
criminal charge, they may have a claim against the employer for putting them in
that situation.

The employer could, however, be vicariously liable for a civil claim of
assault. The remedy for assault is in damages, which an employee may claim
against the employer, the perpetrator of the assault or both. If the conduct of
the search formed part of the contract, the employee would have given consent
to the search provided it was carried out properly and reasonably.

Discrimination

Random searches should be genuinely random unless the employer has
reasonable suspicions about a particular employee. Care should be taken to
ensure the employees being searched were not chosen for any discriminatory
reasons on the basis of race, sex or disability.

Human Rights Act 1998

The Human Rights Act 1998 (HRA) introduced Article 8, which is a right to respect
for private and family life. This, however, is not an absolute right and is one
that must be balanced with, among other things, the protection of the rights
and freedoms of others.

The right is also not directly enforceable against a private employer but it
is enforceable against public bodies or those carrying out a public function.

However, the employment tribunal and the courts are specifically required by
the HRA to take the Act into account when making their decisions.

Consequently, an employee could argue as part of, for example, an unfair
dismissal claim, that their rights under the HRA had been breached when they
were dismissed.

HR issues

Having a written policy on searching, and ensuring that all employees are
aware of it and have training on it, is important. Such a policy should
include:

– The reasons for the search

– Who will conduct the search

– The frequency of the searches

– How employees to be searched will be chosen

– Where the searches will be conducted.

Employers should also consider the following:

– Whether physical searches should be conducted or whether the use of
non-invasive methods, such as scanners, are sufficient

– Searches should be conducted in private

– Those searching must be properly trained

– Searches should be carried out by those of the same sex as the employee
being searched.

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