Legal Q&A: Staff searches

On 31 May 2007, the government announced a new legal power for teachers to search their pupils for knives and other offensive weapons without consent. So do employers have a similar power to search their employees if they suspect one of their workers is stealing stock or selling illegal drugs on their premises?

Q Is there a legal right to search our staff?

A The short answer is no. It is a fundamental principle of English law that every person’s body is inviolate. Any form of physical contact – even mere touching if it offends the individual in question – is unlawful without consent. To conduct a bodily search of an employee without their express consent could therefore constitute assault, battery, false imprisonment and/or sexual assault. There may also be civil remedies available to the employee for the civil offence of trespass to the person.

Searching your employees without their consent would almost certainly be seen as a breach of the mutual duty of trust and confidence between employer and employee. This could entitle the employee to resign and claim constructive dismissal.

Q There is a provision allowing us to search staff in each employee’s contract. Does this mean we can search them without consent?

A If there is an express provision in the contract of employment then an employee will be deemed to have given their consent when entering into the contract. However, an employer should still be wary. If the employee refuses to be searched, then they will be held to have withdrawn the previous consent.

The way in which the search is carried out will be subject to the duty of trust and confidence. If an employee resigns and makes a subsequent claim for constructive unfair dismissal, then a tribunal will look at whether there were reasonable grounds for the search, and will examine whether it was carried out fairly and reasonably, with regard to all of the circumstances.

Q What can we do if an employee refuses to be searched?

A If there is a contractual term allowing the employer to stop and search staff, then a refusal could amount to a breach of contract, and you could initiate disciplinary action.

If there is no contractual term, then you could argue that the employee has refused to carry out a reasonable management instruction. Although this may be sufficient to discipline the employee in question, it is unlikely to warrant a dismissal.

It is advisable to have a stop and search policy in place, and an express contractual term, specifying that refusal to be searched may be treated as gross misconduct and may result in that employee’s dismissal.

Q What sort of things should we include in a stop and search policy?

A Every business wishing to search employees should have a clear written policy in place. It should be issued to all employees and should set out the reasons why a search may be made, the individuals authorised to carry out such searches, where the search would take place, and the consequences of refusal.

Q Will such a policy protect me from claims?

A The existence of a policy will not prevent claims if searches are carried out unreasonably. Individuals who carry out the searches should receive training. Ensure that the searches are carried out in private by a person of the same sex as the individual being searched and that no overly-invasive methods of searching are used.

Importantly, always remember to seek the employee’s express consent prior to any search. If the employee refuses to give consent, no search should take place, but you may wish to commence disciplinary action.

Q Can we search our employees’ work areas/desks/cars if we have suspicions of theft?

A An employee may argue that this infringes their right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR). However, the ECHR is not directly enforceable against a private employer and Article 8, in any event, is not an absolute right, but one that must be balanced against other rights and the protection and freedoms of others.

The UK’s Human Rights Act 1998 requires tribunals to interpret domestic law in accordance with the rights set out in the ECHR, and so an employee could argue that, for example, their constructive dismissal claim is stronger, because their right to privacy was infringed.

Again, a policy letting employees know that work areas may be searched will help you to defend any claims.

By Joanna Downes, solicitor at Clarion Solicitors