Daily searches - do I have to stay after shift?

[angryweasel]

I work as a contract cleaner at a local high street store. I agreed at start of employment to random searches and have occasionally had these - no problem at all , manager approaches as I'm leaving and does pocket /. bag type search in non public area.

 

We have now been imformed that quote "You can't leave until you've been searched" and that this will be every shift. We are expected to report as we go off shift and wait for an available manager. Unless I leave work on time I will be late for my next job , so have told them there is no problem being searched, but if a manager is not available in time for me to leave at the correct time, I will leave regardless. The manager had a blue fit!. We are not employed by the store and have had no notification of a change in proceedure from our employers. We have signed to follow REASONABLE direction from the store managers but don't see staying behind unpaid every day as reasonable? I also believe that this goes beyond the "occasional random search" that we have agreed to

 

I would welcome any help / opinion on this. My employer from the job I do before this one ( who actually lets me go early every day to be in time for this job - without stopping pay) has offered to cover the hours if I leave, so I will probably be taking them up on this VERY soon

[butterfly123]

Use the grievance procedure in writing and keep a copy and a copy of any correspondance they send you regarding this.

[angryweasel]

Thanks for replying, Butterfly, unfortunately I don't have such a thing - either for this employment or any of the 4 others I do on a daily basis, in fact in 26 years of employment, no one has ever given me this statutory document!!!! (

I find in most circumstances, this actually puts me in a stronger position when things go wrong!

 

I've decided to ignore the demand for a search before leaving - after all it hasn't come from my employer, just their client.

 

I've found this on the net tonight

 

 

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.

 

A breach of contract could lead to a claim for constructive dismissal. This could be a contractual claim - such as wrongful dismissal, unfair dismissal, or both.

 

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.

 

Consequently, an employee could argue as part of, for example, an unfair dismissal claim, that their rights under the HRA had been breached when they were dismissed.

 

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.

 

I'd actually be quite pleased if they should insist on this policy - constructive dismissal would be worth a bit more than resigning!!