Br@ndlegal’s employment law guru Olivia Sinfield focuses this month on steps employers can and can’t take if they suspect theft or drug-taking in the office.
Does An Employer Have The Right to Stop and Search Employees?
What do you do if you suspect one of your employees has stolen goods on his person or you suspect the employee may be selling drugs on the premises? Is the employer entitled to stop and search the employee, or search his office or desk?
It is well established in law that an employee will not be regarded by an Employment Tribunal as having acted fairly unless it has carried out a reasonable investigation before dismissing the employee. Nevertheless some situations may arise where the employee believes the only way to disclose whether an employee has committed a particular offence is to do a search.
Issues to consider are:
The Contract of Employment
Putting the power to stop and search in the contract of employment. The manner in which the power is exercised, however, is subject to the duty and mutual trust and confidence that is implied into every contract of employment. The employer must take care not to breech this, especially if a body search is being carried out. The employer should remind the employee of the power to stop and search and check that the consent has not been withdrawn.
Refusal to Undergo a Search
If the employer has the contractual right to search and the employee refuses to be searched, then the employee his withdrawn his consent. He or she is in breach of contract and the employer can take disciplinary action against the employee. Whether this takes the form of dismissal will depend on all the circumstances. However it will be easier for the employer to defend a dismissal if the disciplinary policy stipulates dismissal in these circumstances.
No Power Under the Contract of Employment
If there is no provision in the contract of employment then providing the employee consents to the search then the employer can proceed. If the employee refuses to be searched, the employer cannot generally search the employee against his will. The employer can dismiss the employee but will have to justify the dismissal in all the circumstances which will be difficult because the employee will not be in breach of contract.
Involving the Police
This is a difficult decision: involving the police will almost certainly lead to a breakdown in the trust and confidence in the employer relationship. However, the employer may take the view that the offence is very serious that in any event the employment must end and that the culprit must be brought to justice. In addition, if the offence involves drugs, the employer may be committing an offence under the Misuse of Drugs Act 1971, if the employee supplies drugs prohibited under the Act, or uses drugs on the employers premises.
