Security - Stop and Search Policy

Darren Sherborne - BPE Solicitors
Online advisor - 17 posts

You need a contractual provision specifying the circumstances in which you may stop and search employees. By entering such a contract the employee has given contractual consent to such searches. You must still exercise your contractual right reasonably. Failure to do so could result in you breaching trust and confidence and employee claiming constructive dismissal.

If an employee later refuses a search, they are in breach of contract. You can decide whether to take disciplinary action. Defending such action will be easier if your Disciplinary Policy stipulates that such a breach will lead to dismissal. If you lack the contractual consent, you will have problems justifying a dismissal for refusing to consent to a search.

A Stop and Search Policy will also help. It expands on the contractual provision, modifies an employee?s expectations to privacy and gives advance notification that theft etc. will be taken seriously.

Even then, the conducting of a search is likely to amount to assault, battery and false imprisonment resulting once again in a claim of constructive dismissal.

The only potential defence is to show both contractual consent and express consent at the time of the search.

The Policies should be (re)distributed now.

This is an area fraught with legal pitfalls. If you need further help, please ask.

Anonymous

further to this, is there a law stating how a stop and search should be conducted? i.e. how many people should be present? (an independant witness?), who should be present?

Anonymous

My Company has recently introduced searches, the Employees were all informed by letter that these would commence in the near future, the Company policy states 'The Company reserves the right to search employees' personal parcels, packages, cases and vehicles and any such search will be conducted, if the employee so wishes, in the presence of a third party' we have one Employee who has raised a number of concerns relating to the procedure, namely:

1.The individual feels he was not properly consulted.

2.The list of random searches are seen by individuals who are also on the list.

After a meeting with the HR Departement he was told that his concerns would be investigated but in the meantime he was told he must adhere to the policy.

He has since refused to be searched and now faces the prospect of Disciplinary action.

I wondered wether the direction this issue was taking was both legal and fair

Regards

Dave

Anonymous

Gina

We added this amendment due to a spate of thefts nearly 2 years ago. After taking legal advice we introduced the policy as part of our terms and conditions of employment.

The policy also has a "consent to search" form which is signed by the employee and their direct manager prior to the search taking place. The employee in question is also offered a witness who signs the form also.

The policy states also covers random searching. One improtant consideration is the the manager who wishes to search must seek authorisation from myself prior to the search being conducted. This eradicates individuals attempting to abuse their power and also searching unecessarily as it can affect morale if it occurs more than is required.

If you want a look at the policy reply with your email address and I will send it to you.

Anonymous

My Company Car was searched without any notice or consent, it was done on a stop and search procedure, it was performned by the Area Manager, on a so called " Spot Check looking for fraudulent Docs" I feel this is wrong and that I may have been targeted, the search was on a public highway, maybe the Police have the right but do they?

Nothing was found !

Anonymous

I am searched on a daily basis on the way out of work. I don't really mind this, as I have nothing to hide. What bothers me though, is the fact that these searches take place on my time. On one occaision I was standing waiting to be searched for 25 minutes. My terms and conditions state that all employees will be searched on leaving the building, but surely this should be done on the companies time,not mine?

Anonymous

My girlfriends company has informed management that anytime the register is short at the end of a shift that all staff are to be searched bags and even wallets and purses. No contracts have been signed by employees. By law can a wallet or purse be searched for missing cash. How can they proove that the cash in there wallet belongs to the store. Is it up to the employee to proove that the cash in their wallet belongs to themselves. What ever happened to innocent until proven guilty not Guilty until prooven innocent.

Anonymous

We have security guards in place who stop and use a security wand if the 'loop' bleeps. We are now being told that we have to proceed through the 'loop in a clean fashion'. Many female staff wear underwired bras which does cause the machine to bleep. To proceed through 'clean' the intimation is that they would need to be removed. The same applies to jewellery etc. Is this an infringement on the employees rights? All advice appreciated.

Anonymous

It is impossible to proceed through the loop "clean" as it depends on the level of sensitivity the loop is set to. I was travelling to the USA recently and even the eyeholes in shoes were detected.

If the loop is set to very sensitive then no metal could be taken through. Thus I can see the case where spectacles, earings, necklaces, bras, rings, watches, navel studs, belts, bracers, shoes all have to be removed! I presume that purses, wallets, keys and any metal objects in pockets already have to be placed into trays.

I have also seen an incident where the loop was tuned to very sensitive as each search was against a bonus scheme and all males were searched as their trouser clips were being detected.

I would just ignore the problem and ensure that any searches were done in private by a woman with a witness of your choice.

Anonymous

Company random searches can be refused at any point if the person being searched feels they are being victimised or simply does not want to be searched.

Many companies take it upon themselves to bestow these rules without finding out the correct information regarding law and EU legislations of civil rights.

A single person can refuse to be searched by anybody other than police. A security officer does not have the right to touch your person or belongings, that power relies solely with police forces. If a security officer subjects you to a search after you refuse you can take legal action on the grounds of assault, battery and false imprisonment. If an employer insists that the search must take place you must inform them that they are in violation of article 8 of the human rights act 1998 and that you can only be searched by a representative of the law enforcement agency on grounds of theft. You could also take legal action if the police search you and the claims are unfounded. KNOW YOUR RIGHTS most employers will tell you that they co here to law but in fact introduce these policies of "abuse" without researching the nescesarry laws which bind them.

Anonymous

john.
my company has just started to order staff to remove footware , i dont object to bag search or outer clothing but i objected and said no , i will find out today what price i will pay, but after reading previous letters i will quote article 8 of the human rights act

Jeff Smith
Member - 1 post

my company is going to commence random security searches by security guards when staff are leaving the building, do we need to sign a contract to agree to these searches and what would happen to me if i refused to be searched and wanted to be let out of the building, could the security officers detain me and my vheicle or are they obliged to let me out

kat lowe
Member - 2 posts

my company has introduced a search policy.it is covered by contractual consent,and we(the union)agreed to it on the understanding that it would be non invasive.
An elderly employee was recently asked to face the security guard and raise his clothing.he was quite unhappy about this request,although he did comply.
I wonder..do you regard this practice as invasive?
I view this as unreasonable.it was a routine,random search.there was no indication that this person had committed any wrongdoing.

Caroline Peskett
Member - 24 posts

In reply to Gina, it would be very helpful if you could send me a copy of your policy on searching employees.
Many thanks

my e-mail address is Carolinepeskett@ntlworld.com

Sue Kirby
Member - 5 posts

I am looking for a model copy of a Stop and search policy for my company. Does anyone know where I can find one please

Sue

Gillian Nightingale
Member - 175 posts

Sue

A stop and search policy is one of several new titles in Workplace Law's Policies and Procedures series which we are currently working on, and aim to publish in May. This will be an electronic downloadable policy, which you can customise for your organisation, together with a Management Guide explaining the legislative issues involved. I will let you have more details as soon as they are available, but meanwhile maybe someone else on the forum can help give you information on how they approach this issue.

jason gilderdale
Member - 5 posts

at my place of work we do not have a stop and search policy
recently a couple of my guys have told me that an employee has been filling his bag with items from our stores
how can i aproach this and deal with it
it seems that as an employer i have no rights

Linda Goodwin
Member - 2 posts

Does a random "stop & search" policy have to be random? I know that in certain circumstances, everybody is searched on the way out, i.e. it is not random. Is this legal if it is supposed to be a random stop & search policy? Also, does a company have the right to stop & search everyone if they choose not to go down the random route?

Bob monk
Member - 4 posts

Hi,

one of my supervisors went into one of the staffs bag and conducted a search. The member of staff was not consulted about this, so therefore gave no consent, and was not present at the search.

Should my supervisor have carried out this search? Or could my member of staff carry out legal action against her?

The only policy the company regulates is searching the bags before they leave the premises.

John Ashton
Member - 1 post

This is a tricky area which I have spent countless hours trying to make the policy as water tight as possible. I am trying to adopt a search policy myself which is not based around theft but around the use and carrying of weapons. This will not be aimed at company staff but with young learners who come to the site a few days a week for further training where we have already experienced a few cases of persons carrying and attempting to use weapons. Trying to get them to agree to the conditions of access is one issue but enforcing it is another as some of these young individuals have anger or behavioural issues and are often looking for an excuse to lash out. I think in this case a policy is a necessity but how to enforce it with safety in mind is the issue I have. Has anyone else had this issue and could probably give me some advice as it would be much appreciated?

Thanks!

Colin England
Member - 55 posts

The practice of employers simply changing a contact of employemnt unilaterally is wrong. There must be joint informed consent to the change which means that all employees must be consulted individually - unless there is a Union which has the right to negotiate and agree such chnges on behalf of all employees.

May I suggest that employers try using eyeball readers and airports style loop systems. These will check every person - directors as well- and therefore there can be no possibility of "picking" on someone person. and such systems are cheap to install and use.

An employee could rely on the Human Rights Act to protect himself against random searches.

James Fairchild
Member - 257 posts

Perhaps an easier way is to call the police on suspicion of a theft occurring?

Note the comments at the top of this chain that mention assault/battery/false imprisonment.

Colin England
Member - 55 posts

My understanding is that the employers which ahve rasied this matter on this forum site have in mind three scenarios -
1. introduction of a policy which allows the employers staff to undertake searches.
2. the use of random "searches"
3. the prevention of crime (either theft or carrying weapons).

If the police were called every time someone was merely suspected of theft they (the police) may consider that it is a case of crying wolf to often and not attend.

I would comment on the three scenarios as follows
1. If any new or change of policy is contemplated then there must be informed consultation - either with the staff by individual or with a Union.
2. random searches are easily possible with the use of airport style eyeball readers or loop systems. These would indicate the presence of metals only. If such was indicated as being present then the employers staff could ask the employee for an explanation. If that was not forthcomming -then the police could be called. that would usually work - imho.
3. the mere fact that staff know that the employer is taking the matter of crime seriously would be enough to go a long way to prevent such crime.

I would be interested to see any policies on this matetr - my email is cengland464@aol.com