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Is there a legal right to search staff?
The short answer is no. It is a fundamental principle of English law that every person’s body is inviolate. Any form of physical contact – even mere touching if it offends the individual in question – is unlawful without consent. To conduct a bodily search of an employee without their express consent could, therefore, constitute assault, battery, false imprisonment and/or sexual assault. There may also be civil remedies available to the employee for the civil offence of trespass to the person.
Searching your employees without their consent would almost certainly be seen as a breach of the mutual duty of trust and confidence between employer and employee. This could entitle the employee to resign and claim constructive dismissal.
There is a provision allowing the employer to search staff in each employee’s contract. Does this mean the search can be carried out without consent?
If there is an express provision in the contract of employment, then an employee will be deemed to have given their consent when entering into the contract. However, an employer should still be wary. If the employee refuses to be searched, then they will be held to have withdrawn the previous consent.
The way in which the search is carried out will be subject to the duty of trust and confidence. If an employee resigns and makes a subsequent claim for constructive unfair dismissal, then a tribunal will look at whether there were reasonable grounds for the search and will examine whether it was carried out fairly and reasonably, with regard to all of the circumstances.
What can the employer do if an employee refuses to be searched?
If there is a contractual term allowing the employer to stop and search staff, then a refusal could amount to a breach of contract, and you could initiate disciplinary action.
If there is no contractual term, then you could argue that the employee has refused to carry out a reasonable management instruction. Although this may be sufficient to discipline the employee in question, it is unlikely to warrant a dismissal.
It is advisable to have a stop and search policy in place, and an express contractual term, specifying that refusal to be searched may be treated as gross misconduct and may result in that employee’s dismissal.
More information will be in the book.