Many employers are concerned about staff covertly filming footage from, for example, inside factories which may show confidential information or misrepresent their activities. We are often asked by employers whether they can search employees for such cameras.
As always there are a number of considerations to take into account.
When conducting an employee search, the procedures in place and how the employers conduct themselves is of vital importance.
Employers do have the power to search however, this search must have a legitimate purpose and are limited in scope without violating the employee and their rights.
Searching is unlawful without consent. To conduct a bodily search of an employee without their express consent could result in workers potentially have a claim for discrimination, assault, or false imprisonment and can result in a breach of mutual duty of trust and confidence. The employer must be careful not to breach the implied term of mutual trust and confidence when a search is being carried out, this can be done by reminding the employee of the power to stop and search and check if consent has been withdrawn or not. If consent has been withdrawn and there is a contractual term allowing the employer to stop and search staff, then the refusal could amount to a breach of contract and result in disciplinary action.
Similarly, should the employment contract not contain the term to search the employee, this can still be done with consent. Should no consent be given, and the employer dismisses the employee, it would be difficult to argue
Employers must also consider the Human Rights Act – Article 8 Right to respect a person’s privacy.
For example, if a business chose to introduce a random stop-and-search policy to a contract, an employee may resign and bring a claim of constructive unfair dismissal by arguing that the employer was in breach of the duty of trust and confidence and was acting unreasonably in conducting the search, which in turn infringed their Article 8 right to privacy.
In determining whether Article 8 has been infringed in the workplace, the European Court of Human Rights will assess whether there was a "reasonable expectation of privacy". If an employer warns an employee of their intention to search, then the employee's expectations of privacy will be removed. Employers will be in a much stronger position if they have a clear policy detailing the circumstances in which searches may be carried out.
Employers should have a written policy on searching. Searches should:
- Respect privacy;
- Be done by a member of the same sex; and
- Be done with a witness present.
Even if employers do have a policy in place, they must implement that policy without acting in a discriminatory way. For example, if they repeatedly select the same employee to be searched and that person has a protected characteristic (sex, race, disability, etc) but they don’t search others without that protected characteristic in the same way, that employee may have a claim for discrimination.
Essentially, any employer should take legal advice from a specialist employer lawyer before searching employees for covert cameras. Our employment team would be happy to help.