Stop & Search – Monitoring the workforce

The legal action taken with regard to security checks Apple performs on its employees has caused considerable comment across the media and within business circles.

The cause of the dispute has not been so much about the level of security or any personal infringement of freedoms but more to do with the amount of time it is taking to undertake the searches.

Employees are expected to wait in line for bag searches and clearance checks. The crux of the matter is whether these searches and checks should take place whilst the employee is still being paid for their time or whether the employer has the right to carry out the activity outside the contracted hours of employment.

In the UK bag searches and other checks are not unusual in certain business environments such as retail and where employees are exposed to high value goods or materials in their day to day work.  Many employers will refer explicitly to this process in their terms of employment and staff handbook. It is unlikely to be claimable as ‘overtime’ unless your contract of employment specifically identifies it as such.

On the other hand, employees have rights to reasonable privacy at work. If an employer were to conduct unreasonable searches of employee’s bags and possessions on a regular basis and particularly within a sector where there is little risk of theft, the employer could face potential legal proceedings.

What is a sensible policy for employers to take?  Basically if an employer has made it clear what their search and security checks are at the start of the employment period, through written policies within an employee’s contract, it will provide them with good protection should there be a claim.

Whilst bag searches will continue in certain business sectors, the likely battlefields in the future are more likely to involve technology. CCTV has been around for a long time but more employers are utilising such activities as monitoring e-mails and the internet as well as GPS tracking where employees are out on the road. Drug testing is also common in work places such as the oil and nuclear industry.

Data protection law covers any monitoring of employees that involves taking data, images or drug testing.

If an employee is unhappy about being monitored, they should check their staff handbook or contract to see if the employer is allowed to do this.

If the employer has not made clear that they will undertake bag searches or other monitoring and checks as a last resort an employee might be able to resign and claim unfair (‘constructive’) dismissal.

Employers should have a written policy on any personal searches. Searches should:

  • respect privacy
  • be done by a member of the same sex
  • be done with a witness present

The employer risks an employee lodging a claim for discrimination, assault or false imprisonment if a search or drug test is badly handled.

There is a risk of causing personal freedom infringements to all monitoring and search techniques if used in the wrong way. How and when these monitoring and tracking activities are to be used should also be spelt out in an employee’s contract of employment as well as in house documentation.

Employers will always be in a stronger position with both a monitoring policy in place, and one that has specifically been brought to the attention of employees.

If you have any questions relating to the issues discussed in this Blog update or in relation to any other Employment matter, please call 01483 302000 or email and ask to speak to David Denovan-Smith.