News1 min ago
body search
7 Answers
are bosses allowed to do random "body searches"?
Answers
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This may depend on your contract. I've worked at football grounds and as part of your contract you agree to accept searches at random, but only be certain members of the security staff.
It depends a lot on the context of your (or the person in question's) job, what was happening, who did the search, if you/they felt obliged, if you felt sexually assaulted in anyway, if other people were present etc etc
Normally, I'd have thought it's a "no", unless you specifically agree to it in your contract.
There is no absolute right to privacy in English law. There are, however, a number of issues an employer must consider before introducing a policy on searching.
Contractual issues
Implied into every contract of employment is the term of trust and confidence. Carrying out a blanket search of all employees any time they enter or leave the building could be considered a breach of this because the employer is demonstrating a complete lack of trust in all of its employees, all of the time.
Random searching of employees is less likely to fall into this trap but employers must, nevertheless, demonstrate that the searching is being carried out for objective business reasons.
A further contractual issue concerns changing the position for existing employees. Introducing a new policy on searching could amount to a change in terms and conditions and, therefore, must be introduced in the way that any contractual change is introduced.
The final contractual issue concerns confidentiality. This centres on the issue of anything of a confidential nature that is discovered as a result of a search. Those conducting the search would need to keep confidential any information ascertained as a result of the search and only pass on to the employer information relevant for the purposes of the search.
contd....
Contractual issues
Implied into every contract of employment is the term of trust and confidence. Carrying out a blanket search of all employees any time they enter or leave the building could be considered a breach of this because the employer is demonstrating a complete lack of trust in all of its employees, all of the time.
Random searching of employees is less likely to fall into this trap but employers must, nevertheless, demonstrate that the searching is being carried out for objective business reasons.
A further contractual issue concerns changing the position for existing employees. Introducing a new policy on searching could amount to a change in terms and conditions and, therefore, must be introduced in the way that any contractual change is introduced.
The final contractual issue concerns confidentiality. This centres on the issue of anything of a confidential nature that is discovered as a result of a search. Those conducting the search would need to keep confidential any information ascertained as a result of the search and only pass on to the employer information relevant for the purposes of the search.
contd....
Assault
Assault is both a criminal and a civil offence, and searching employees could amount to assault if not carried out properly and with the employee's consent.
The employer may not be vicariously liable for a criminal act, but those conducting the search could reasonably refuse to carry out searches that could lay them open to a criminal charge.
If they had been asked to conduct a search that made them liable for a criminal charge, they may have a claim against the employer for putting them in that situation.
The employer could, however, be vicariously liable for a civil claim of assault. The remedy for assault is in damages, which an employee may claim against the employer, the perpetrator of the assault or both. If the conduct of the search formed part of the contract, the employee would have given consent to the search provided it was carried out properly and reasonably.
Discrimination
Random searches should be genuinely random unless the employer has reasonable suspicions about a particular employee. Care should be taken to ensure the employees being searched were not chosen for any discriminatory reasons on the basis of race, sex or disability.
Human Rights Act 1998
The Human Rights Act 1998 (HRA) introduced Article 8, which is a right to respect for private and family life. This, however, is not an absolute right and is one that must be balanced with, among other things, the protection of the rights and freedoms of others.
The right is also not directly enforceable against a private employer but it is enforceable against public bodies or those carrying out a public function.
However, the employment tribunal and the courts are specifically required by the HRA to take the Act into account when making their decisions.
contd... (just a little bit more)
Assault is both a criminal and a civil offence, and searching employees could amount to assault if not carried out properly and with the employee's consent.
The employer may not be vicariously liable for a criminal act, but those conducting the search could reasonably refuse to carry out searches that could lay them open to a criminal charge.
If they had been asked to conduct a search that made them liable for a criminal charge, they may have a claim against the employer for putting them in that situation.
The employer could, however, be vicariously liable for a civil claim of assault. The remedy for assault is in damages, which an employee may claim against the employer, the perpetrator of the assault or both. If the conduct of the search formed part of the contract, the employee would have given consent to the search provided it was carried out properly and reasonably.
Discrimination
Random searches should be genuinely random unless the employer has reasonable suspicions about a particular employee. Care should be taken to ensure the employees being searched were not chosen for any discriminatory reasons on the basis of race, sex or disability.
Human Rights Act 1998
The Human Rights Act 1998 (HRA) introduced Article 8, which is a right to respect for private and family life. This, however, is not an absolute right and is one that must be balanced with, among other things, the protection of the rights and freedoms of others.
The right is also not directly enforceable against a private employer but it is enforceable against public bodies or those carrying out a public function.
However, the employment tribunal and the courts are specifically required by the HRA to take the Act into account when making their decisions.
contd... (just a little bit more)
HR issues
Having a written policy on searching, and ensuring that all employees are aware of it and have training on it, is important. Such a policy should include:
- The reasons for the search
- Who will conduct the search
- The frequency of the searches
- How employees to be searched will be chosen
- Where the searches will be conducted.
Employers should also consider the following:
- Whether physical searches should be conducted or whether the use of non-invasive methods, such as scanners, are sufficient
- Searches should be conducted in private
- Those searching must be properly trained
- Searches should be carried out by those of the same sex as the employee being searched.
Having a written policy on searching, and ensuring that all employees are aware of it and have training on it, is important. Such a policy should include:
- The reasons for the search
- Who will conduct the search
- The frequency of the searches
- How employees to be searched will be chosen
- Where the searches will be conducted.
Employers should also consider the following:
- Whether physical searches should be conducted or whether the use of non-invasive methods, such as scanners, are sufficient
- Searches should be conducted in private
- Those searching must be properly trained
- Searches should be carried out by those of the same sex as the employee being searched.
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