Staff searches pose risks for employers

Anthony Drake, Senior Associate | November 2003

As businesses and stock rooms get busier in the run-up to Christmas, many employers notice an increase in petty theft as the temptations of the season prove overwhelming to some employees. Without wishing to appear Scrooge-like, employers need to stem the flow of goods out of their premises and may consider random searches as a deterrent.

Searching questions

There are some risks for an employer that carries out any search of an employee. The courts have tended to assess whether a search is lawful on a case-by-case basis, and there are no comprehensive guidelines.

Factors considered will include the purpose of the search, the way it is carried out, the degree of intrusiveness involved, and whether consent was obtained.

Workplace searches share some important parallels with the issue of random drug-testing of employees - which was recently the subject of a lengthy Employment Court hearing. That Court's decision, when given, may establish some principles that may also apply to searches.

When can you search?

On the law as presently stated, searches of employees may be justified in situations where:

• there is a suspicion - based on reasonable belief (that is, some factual basis of observation or fair conclusion) - of theft or unauthorised possession of company property.
  
  
• employees consent in their employment agreement to such searches in certain circumstances.
  
  
• there is a company policy setting out the reasons or purposes of searches in certain circumstances.
  

In considering one complaint under the Privacy Act 1993, the Privacy Commissioner considered inspecting bags and vehicles coming in and out of company premises was lawful where the company had identified the purpose as being to prevent theft, protect company and employee property and comply with Health and Safety legislation.

Security guards could reasonably look into bags but were not entitled to rifle through the contents. Preventing theft is a permissible purpose but searches should not be unreasonably intrusive.

In this example, where the company was concerned about theft of larger items, such as laptop computers, the Privacy Commissioner found it unreasonable to search handbags too small to hold such items.

Random searches carry some risk that an employee found to have no unauthorised material may claim that they were subjected to an unreasonable humiliating search which was a breach of the company's duty to act reasonably and fairly to employees.

What are your options?

Comprehensive searches

A 'routine' search of all staff, on entry or exit, from company premises avoids any suggestion of 'singling out' any individual or individuals unfairly. As the search would need to be conducted in work-time, there would be some effect on total productive time during a shift.

Such searches would be preliminary - that is 'looking' only - including asking employees to empty pockets and bags. Where this gives rise to some suspicion, there is then some basis to conduct a more thorough search.

Suspicion-based searches

If a company has reason to believe that a particular employee may be in unauthorised possession of company property (or the property of another employee or visitor), you are entitled to advise the employee that you wish to search their possessions.

Random searches

This is the least favourable option and it poses a number of risks. If the employee revokes their consent and refuses to participate, and you decide to proceed with the search regardless, you could face a variety of personal grievance claims.

Good practice

As a first step, we recommend that you amend your company policy to include searches and notify the changes to your staff. The policy should identify the purpose of searches - that is ensuring security of company property, security for staff property and staff safety.

Ask each current staff member to sign a letter consenting to searches for these purposes, and a further clause consenting to searches should be inserted in the employment agreement offered to all new employees.

Searching

If you do need to search staff, consider the following issues:

• ask your employees to confirm their consent to an inspection before each search. If an employee refuses, remember an employer cannot search an employee against their will as this would amount to an assault under general law. Rather, consider whether there is sufficient suspicion to ask the Police to attend your premises to search the employee. Bear in mind that if an employee is required by you to wait for the Police to arrive, and is not told they are free to go if they choose, you should have very good reasons for your suspicion as detaining them may otherwise be an unreasonable detention.
  
  
• you should be inspecting rather than rifling through bags, lockers and clothing. Look, don't touch.
  
  
• employees should be asked to empty bags and pockets rather than a company representative or security guard putting their hands into bags and searching clothing.
  
  
• inspections should be conducted out of sight of other employees to minimise embarrassment or humiliation for staff over any personal possessions.
  
  
• Any refusal by an employee to allow a search when there has been prior consent or communication of a policy is likely to be relevant to any disciplinary action.
  

Advice and information

Bell Gully's Employment Team can advise you on all types of employment issues, including staff searches. Contact the team for more information.