What do you do if you suspect that one of your employees has committed theft, is dealing drugs on your premises or in possession of something dangerous?

You haven’t been able to catch them red-handed on CCTV footage or by looking through their work emails, so you want to search the employee, their locker and bag.

Before you carry out a search, you need to pause and take a deep breath. Carrying out a search without any thought to the law could mean you face a wide range of claims, such as assault, battery, discrimination, false imprisonment or constructive dismissal. We would always recommend that you contact your Employment Law Adviser before taking any action.

Getting consent

You are only permitted to search an employee if you have received clear and unambiguous consent from the employee.

Many employers have an explicit provision in the Contract of Employment, which lays down that they reserve the right to carry out a search and what will occur if the employee refuses.

In spite of this provision, it is highly recommended that you should ask them before you do anything. Conducting a search without the employee’s permission could lead to claims of assault and they could seek damages. It can also negatively affect the relationship of trust and confidence, which may enable an employee to resign and claim for constructive dismissal.

The clause in the contract does, however, have some use – if employees know what the possible consequences are of not giving their consent, they may be more inclined to agree to your request. For example, you may state in the Contract of Employment or Employee Handbook that their refusal to submit to a search may be used in a disciplinary procedure.

How to carry out searches

It is useful to have a written policy regarding searches in place, so that both you and the employee know the rules and the parameters.

This policy should highlight in what circumstances a search will be made (e.g. what are legitimate business reasons for doing so), who will conduct it, what can be searched, where it will take place and the consequences of refusing to consent to a search.

When conducting a search, remember the following points:

• Make sure you have reasonable and non-discriminatory grounds for conducting a search.
• Explain to the employee the reason for the search.
• The search should be done in private, not in a public space.
• If carrying out a search on someone’s person, they should be carried out by someone of the same sex, who has received appropriate training.
• All searches should be conducted with care and sensitivity.
• Searches should be carried out in front of a witness.

To discuss this topic in more depth, call your Employment Law Adviser who can guide you.