If you suspect that one of your staff has stolen property, be very sure of your procedures before conducting a search, warns solicitor Katee Dias

The Problem

A guest has reported jewellery missing from her hotel room. There are no signs of forced entry to the room. As an employer, do you have the right to conduct a search of your employees?

The law

Stopping and searching employees, whether it be to search their person or their possessions - such as handbags, vehicles and lockers - can lead to claims of constructive unfair dismissal based on allegations that the employer was acting unreasonably, thereby breaching the implied duty of trust and confidence. Bodily searches can also amount to criminal offences, such as assault, battery, sexual assault and also a civil offence of trespass to the person.

Expert advice

In short, there is no legal right to stop and search your employees. If you want to reserve that right, you will need to have an express contractual provision allowing this. However, even where such a term exists, you must exercise that right reasonably.

Therefore, to limit the risk of claims being brought, the employee's express prior consent should be obtained before any search is carried out, particularly when you want to undertake a search of their person. If an employee withdraws their consent but you go ahead with the search anyway, it would almost certainly be a breach of trust and confidence and, potentially, battery.

You should also have a policy in place explaining the circumstances in which you will exercise your right to stop and search and the consequences of an employee failing to co‑operate (eg, that a failure to comply will amount to an act of misconduct in itself, which then brings into play your disciplinary procedure).

Some employees try to argue that a search by their employer is in breach of their human rights, specifically their right to privacy. Although there is no such statutory right that is directly enforceable against a private employer, tribunals aim to uphold the spirit of the European Convention on Human Rights, and so such an argument could be used to bolster a constructive dismissal claim by extending the implied duty of trust and confidence to include a respect for privacy. However, where you have a policy stating that searches may be undertaken, it goes some way to rebut this argument, since then the expectation of privacy at work is removed.

Check list

• Include the right to stop and search in the employee's contract of employment.
• Circulate a policy to all employees explaining: when you will stop and search employees and their possessions how search will be carried out, eg, in private, by senior management only, with an option of having a witness in attendance if the employee requests and the consequences of the employee failing to co-operate.
• Always seek the employee's express consent to the search before it is carried out, even if a contractual right exists. This should be evidenced in writing.
• Use the powers of stop and search appropriately and in a non-discriminatory manner.
• Train appropriate personnel who will undertake the searches. Remember that a person of the same sex should conduct a body search, and that searches should not be too invasive.
• If the employee refuses to consent to the search, this might be a breach of contract and/or a failure to follow a reasonable instruction. Consider the particular circumstances to determine the level of disciplinary action to be taken. Also, remember to follow the statutory disciplinary and dismissal procedure.

Beware!

An inappropriate use of stop and search might lead to claims of constructive dismissal, for which the maximum award is currently £69,900. A bodily search without consent might also lead to criminal prosecution, resulting in a fine and/or imprisonment.

Contact

Katee Dias, Goodman Derrick, 020 7404 0606, kdias@gdlaw.co.uk