Can I search my employees' property?

The strongest employer/employee relationships are ones that are built on trust. However, there may be instances where employers would like to be able to search their employees’ property or person. Searches must be undertaken very carefully as they can raise issues of employee privacy and consent. This article discusses risks employers should be aware of and tips for carrying out a search lawfully.

Conducting a search

A search of an employee’s personal property may lead to allegations that the employer has breached the employee’s privacy or the implied term of trust and confidence. In some cases the employee may resign and claim constructive unfair dismissal. It is therefore important that the employer get the employee’s consent before carrying out a search of their personal property, and it is essential before carrying out a search of the employee’s person. If the employee does not consent to a personal search and the employer conducts one anyway, this may be assault and may incur criminal liability.

Some employers may have a term in their contracts of employment stating that the employer has the right carry out a search of the employee’s property or person. By signing the contract, the employee will be deemed to have consented at the time of signing. However, if the employee refuses the search on the day, they will be deemed to have withdrawn this consent. It is therefore important that consent is sought and confirmed on each occasion the employer wishes to carry out a search.

It would also be advisable to have an independent witness to the search. A witness can confirm what (if anything) was found in the search and that the search was carried out appropriately. The subject of the search should agree to the person who will act as witness or be allowed to choose a colleague to act as witness.

The individuals who carry out the searches should be property trained and be of the same gender as the person being searched.

What if the employee refuses a search?

If the contract of employment contains a term stating that the employee consents to a search, a subsequent refusal would be a breach of contract which could be dealt with under the employer’s disciplinary procedure. If no such contractual term exists, then a refusal may still amount to a failure to follow a reasonable management instruction which could also be dealt with under the disciplinary procedure. Employers may also state that adverse inferences may be drawn where an employee refuses to consent to a search.

Search policies

Employers may want to consider having a search policy setting out the following:

• Reasons for conducting a search;
• How staff are selected for searches;
• The frequency of searches;
• Their right to be accompanied; and
• The consequences of refusing a search.

Employers should give careful thought to the circumstances in which they would want to carry out searches of employee property and communicate these to staff, as having a blanket right to search could create a sense of mistrust among the workforce. For example, some employers state that searches will only be conducted where there are reasonable grounds to suspect the employee has been consuming drugs or alcohol at work.

If you would like help drafting a policy for employee searches, or have any questions about how to properly conduct a search, get in touch with our Employment Team by emailing employment@warnergoodman.co.uk or call 023 8071 7717.