Stop and search of employees

The Problem
You suspect one of your barmen is taking bottles of spirits home with him from the stockroom. There's also been a steady disappearance of expensive foodstuffs from the kitchen, and you suspect one of the kitchen hands to be responsible for this.

You're considering attempting to search the employees to confirm your suspicions. Are you entitled to stop and search your employees, or their lockers, for stolen property?

The Law

Searches of property The Human Rights Act 1998 now requires courts and tribunals to interpret English law in line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, which, under Article 8 protects the right to respect a person's privacy. Therefore, employees working in the private sector cannot bring direct claims based on a breach of right to privacy under convention rights.

However, such an employee can assert that certain English law legal rights, such as the right not to be unfairly dismissed, should be interpreted in a manner consistent with the convention. Therefore, for example, if a business chose to introduce a random stop-and-search policy to a contract, an employee may resign and bring a claim of constructive unfair dismissal by arguing that the employer was in breach of the duty of trust and confidence and was acting unreasonably in conducting the search, which in turn infringed their Article 8 right to privacy.

In determining whether Article 8 has been infringed in the workplace, the European Court of Human Rights will assess whether there was a "reasonable expectation of privacy". If an employer warns an employee that their offices and desks are liable to be searched, then the employee's expectations of privacy will be removed. Employers will be in a much stronger position if they have a clear policy detailing the circumstances in which searches may be carried out.

Body searches The same guidelines apply to body searches. Further, it's a fundamental principle of law that a person's body is inviolate. Everyone is protected against any form of physical molestation and any infringement of that right, which may include mere touching, constitutes the common law offence of battery.

The European Court of Human Rights recognises that a person's physical and bodily integrity is an important aspect of privacy, and any claim is likely to be received well in this regard.

Expert Advice The circumstances in which employees may be stopped and searched should be detailed in contracts of employment. This will enable an employer to carry out searches so long as they are in line with the policy and the employee consents to the search. If an employee refuses to be searched, they may find themselves in breach of contract. Employees may potentially be disciplined or dismissed for such a refusal, as long as there's a clear disciplinary policy in place which stipulates the potential consequences of their refusal.

If an employee has refused to be stopped and searched and the employer still proceeds to carry out the search, there's a risk of the employer being charged with assault.

Check list

• A clear policy on stop and search should be issued to all employees that identifies the reasons why a search may be made, who would carry it out, where it would take place, and what it would look for.
• Employers should ensure that their contracts of employment provide that searches may be carried out, as well as the potential consequences of an employee refusing to be searched when requested.
• Employers must ensure that those carrying out searches do not discriminate against those being searched on the grounds of race, gender, religion or sexual orientation.
• No invasive methods of searching should be used where possible, and on body searches, someone of the same gender should carry this out in private.
• Employers must ensure consent is given by the employee, even where the employer has a contractual right to search.

Beware! Employers should always seek consent from the employee before conducting any search. Failure to do so could result in criminal prosecution and/or a claim of unfair dismissal. The maximum award for a claim of unfair dismissal recently increased to £58,400.

ContactCatherine Grady
Dickinson Dees
Tel: 0191-279 9084
catherine.grady@dickinson-dees.com