Searching Personnel

Ciaron Dunne
Member - 85 posts

Andy,

We are not aware of any formal guidelines as such.

Searching employees is potentially an invasion of privacy, and so you must be able to justify that searching is being carried out for objective business reasons. Employees in the private sector do not have a specific legal right to privacy at work, but we would suggest that you bear the following points in mind:

* Blanket searching of all staff may be harder to justify than random searching.

* Beware that introducing searching could be perceived as a change in terms and conditions by employees.

* Make sure you communicate the reasons properly to staff, or you could risk the "trust and confidence" that is implied into every employment contract. You should consider drawing up a policy containing the reasons, and how searching will be carried out.

There was a good article in Personnel Today last year which covered this subject. You can access this at:

http://www.personneltoday.com/Article18073.htm

Hope that helps

Ciaron Dunne

John Gallacher
Member - 15 posts

Andy,

We operate a searching policy which is attached to the terms and conditions of employment. We took legal advice prior to implementing this and currently it is working very well. We ensured the following;

* No random searches unless we were looking for something specific and we had reasonable evidence to justify this

* Employee being searched MUST be asked if they would like a witness of their own choosing present.

* Authorisation - Managers have to contact myself (Group Security Manager) or our Operations Director for authority before proceeding with said search. This prevents any manager's searching when it is without proper reason or justification.

* Employee Consent Form - Once the search is authorised the manager asks the employee to complete the consent form which includes area to be searched (person, locker, workspace etc), reason for completing search and employee signature. This form is completed prior to the search and if the employee refuses consent they are suspended accordingly for breaching the terms and conditions of employment. (We have never had to do this as yet)

We are aware of the effect that searches can have on morale etc so try to solve matters via alternative methods, ie. CCTV Footage, Asset Management etc. Indeed, we have only used this policy on 5 occasions.

If you would see a copy of the policy and consent form post a reply with your email address and I will oblige.

Hope this helps

John

David Flint
Member - 3 posts

Andy,

Contractually, carrying out a blanket search of all employees any time they enter or leave the building could be considered a breach of the implied term of trust and confidence. Genuinely random searching of employees is less likely to fall into this trap but employers still must demonstrate that the searching is being carried out for objective business reasons and that the employees being searched were not chosen for any discriminatory reason.

It could also be argued that introducing a new policy on searching employees amounts to a change in the terms and conditions of existing employees, so it must be introduced in the same way that any contractual change is introduced.

A policy on searching employees should be put in place making sure employees are aware of it and are given training on it.

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. The employer could, however, be vicariously liable for a civil claim of assault.

Any information gathered must be processed in accordance with the Data Protection Act 1998.

Hope this helps.

Regards

David Flint

Partner

Technology, Media and Communications Group

MacRoberts Solicitors

152 Bath Street, Glasgow G2 4TB

Scotland

(Tel: +44 141 332 9988; Fax: +44 141 332 8886)

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