Can employers asked employees to trun out their pockets and take off their shoes

[Allwood]

My partner was very angry because her employee keeps asking her to turn out her pockets and even to take off her shoes. She feel very stressed becasue of this and questioned the employer and was told that it was in their policy that they can do this. When all the employer is satisfied that nothing in employees pockets and shoes they they have to sign stating that they have been searched. There are normally 2 manager that does this pocket and shoe searches on employees it is a large supermarket that does this kind of treatment to employees surely they cannot think that all their employees are thieves!!

Dose anyone know if this legal, and can employers do this kind of thing with impunity.

[flipper79]

Wow, anyone would think your partner was a prison guard finishing their shift! That's pretty outrageous...and really kinda pointless when clearly dishonest staff would know where not to hide anything stolen. Don't know the law on this sorry, but I can say I've never heard of any retailer doing anything like this. It's just such a massive invasion of privacy. Is it something they've always done?

[madari]

Yes They can search in this way as long as there are more than one person present when searching.

[Allwood]

My partner felt dreadful and that experience made her physically sick. My partner knows that this practice is carry out on most of the lower paid staff regularly regardless of how many years they have been there but it is only carry out on the staff that are working in serving customers not manager or other senior staff.

 

My partner did question it but was told that they could do searches it was in the company policy..it is not however in the staff hand book and it does not mentioned it in the contract either. can my partner a for a copy of the policy that say they can do searches on their lower paid staff.

 

Also my partner was particular upset because one of the manager was a person who had bullied her and lied.... she felt that this person been there was tantamount to harassment and bully again all over again.

[electron99]

Please name the supermarket.

[Allwood]

It is your M with an S at the end hope you can determine the one it is from the initials

[madari]

It is in the tesco and sainsburys staff hand book that they can carry out random security searches...and it is also within the law .

[Allwood]

It may be these supermarkets handbook but not in the one that my partners works for.... I have found this on the subject:eek:

 

Legal Q&A: Staff searches

 

03 July 2007 00:00This article first appeared in Personnel Today magazine. Subscribe online and save 20%.

On 31 May 2007, the government announced a new legal power for teachers to search their pupils for knives and other offensive weapons without consent. So do employers have a similar power to search their employees if they suspect one of their workers is stealing stock or selling illegal drugs on their premises?

Q Is there a legal right to search our staff?

A The short answer is no. It is a fundamental principle of English law that every person's body is inviolate. Any form of physical contact - even mere touching if it offends the individual in question - is unlawful without consent. To conduct a bodily search of an employee without their express consent could therefore constitute assault, battery, false imprisonment and/or sexual assault. There may also be civil remedies available to the employee for the civil offence of trespass to the person.

Searching your employees without their consent would almost certainly be seen as a breach of the mutual duty of trust and confidence between employer and employee. This could entitle the employee to resign and claim constructive dismissal.

Q There is a provision allowing us to search staff in each employee's contract. Does this mean we can search them without consent?

A If there is an express provision in the contract of employment then an employee will be deemed to have given their consent when entering into the contract. However, an employer should still be wary. If the employee refuses to be searched, then they will be held to have withdrawn the previous consent.

The way in which the search is carried out will be subject to the duty of trust and confidence. If an employee resigns and makes a subsequent claim for constructive unfair dismissal, then a tribunal will look at whether there were reasonable grounds for the search, and will examine whether it was carried out fairly and reasonably, with regard to all of the circumstances.

Q What can we do if an employee refuses to be searched?

A If there is a contractual term allowing the employer to stop and search staff, then a refusal could amount to a breach of contract, and you could initiate disciplinary action.

If there is no contractual term, then you could argue that the employee has refused to carry out a reasonable management instruction. Although this may be sufficient to discipline the employee in question, it is unlikely to warrant a dismissal.

It is advisable to have a stop and search policy in place, and an express contractual term, specifying that refusal to be searched may be treated as gross misconduct and may result in that employee's dismissal.

Q What sort of things should we include in a stop and search policy?

A Every business wishing to search employees should have a clear written policy in place. It should be issued to all employees and should set out the reasons why a search may be made, the individuals authorised to carry out such searches, where the search would take place, and the consequences of refusal.

Q Will such a policy protect me from claims?

A The existence of a policy will not prevent claims if searches are carried out unreasonably. Individuals who carry out the searches should receive training. Ensure that the searches are carried out in private by a person of the same sex as the individual being searched and that no overly-invasive methods of searching are used.

Importantly, always remember to seek the employee's express consent prior to any search. If the employee refuses to give consent, no search should take place, but you may wish to commence disciplinary action.

Q Can we search our employees' work areas/desks/cars if we have suspicions of theft?

A An employee may argue that this infringes their right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR). However, the ECHR is not directly enforceable against a private employer and Article 8, in any event, is not an absolute right, but one that must be balanced against other rights and the protection and freedoms of others.

The UK's Human Rights Act 1998 requires tribunals to interpret domestic law in accordance with the rights set out in the ECHR, and so an employee could argue that, for example, their constructive dismissal claim is stronger, because their right to privacy was infringed.

Again, a policy letting employees know that work areas may be searched will help you to defend any claims.

By Joanna Downes, solicitor at Clarion Solicitors

[ErikaPNP]

It is only legal if it is written within the contract, as by signing the contract, an employee has accepted the terms of that contract, thus consent is given by the employee.

 

If it is not within the contract then no it is not legal, regardless of whether or not it is "company policy". Oh, they can ASK an employee to turn out their pockets, but they cannot enforce it or pursue displinary action for a refusal to be searched, without it being in the terms and conditions of the employment contract.

 

The bottom line is that the only person who is entitled to search you without your consent is a police officer.

[Allwood]

The next time my partners get collard in a corridor by these people she can say that it is not in her contact therefore she is refusing to turnout her pockets or take off her shoes, but she can also say they can call the police and she will do it for them.

 

Will this lead to a discipline with her employer??

[ErikaPNP]

They may try to discipline her for "refusal to comply with a reasonable request" however the request is not reasonable, as it is not within her contract and although they may have stated it is "company policy" your wife has yet to see this in writing. Unless they have cause to believe she has stolen from them they have no real need to make such a request, and if they DO have reason to suspect it then they really ought to be involving the police. Employees having to sign the book to say they have been searched says it all really.

 

Put it to you another way: If a customer was seen by a security guard who thinks the customer pocked an item, and security followed them up as they left, they can ask the person to come back inside; but they cannot force them to. They can ask the person to empty their pockets; they cannot force them to. Even if the theft was captured on CCTV. The ONLY person who can search a person without their consent is a police officer.

 

What I would advise in this case is that she doesn't refuse but places in writing her grievances, (to HEAD OFFICE, who may not be aware of the situation) making clear that she is uncomfortable with this and feels victimised, particularly as the searches only seem to apply to lower grade staff, and asks them to clarify what the legal position is if she refuses to comply with any future searches bearing in mind that she has nothing in writing from them, and has signed nothing to acknowledge that this type of invasion of privacy is included in her terms and conditions of employment. Explain in the letter that although it has been verbally stated that this is company policy, she has seen nothing to that effect in either her contract or the staff handbook, and would appreciate a response in writing. It would also help if other staff who feel this isn't right collectively complain. If it is in writing, your wife has a paper trail whereby she has asked for a reasonable explanation of their reasoning behind these stop and searches and why they only appear to apply to the lower staffing grades. She has also made clear that she is uncomfortable with it. A formal grievance demands a response within a 28 day time limit. Far better for it to be in writing, calmly and rationally requesting an explanation, than a verbal confrontation where later on words can be twisted as to what was said. If they are at any time though, placing their hands on her person during these searches - then I would refuse verbally as well as placing the written enquiry/grievance.

 

I do have to be honest though. Although I have provided this advice to you, I don't really see an issue with it as such - other than the fact that the searches only appear to apply to certain staff. I'd have no problem turning out my pockets and taking off my shoes, but I would take severe issue to anyone placing their hands upon me other than those who are lawfully entitled to do so.

[godpikachu]

erikaPNP is absolutley correct, the only person who can legally "lay hands" (never mind search) upon your person without your express consent is a police officer, but only when they have a reasonable suspicion that doing so is required.

 

 

I had a simarlar problem a few years ago whilst working for B&Q, as they had a "company policy" of doing stop and searches on both employees persons and employees cars.#When i was asked to turn out the contents of my pockets and bag, I of course refused and asked them to quote which law specifically gave B&Q employees the right to search another, and was told it was simply "comapny policy". I later lodged a formal greivance and won when they attempted to discipline me for refusing.

 

 

Simarlarly, another firm i worked for insisted it was their right to take blood and urine samples to test for "drug and/or alcohol abuse", again, i refused, primarily as i refuse to have anyone other than a doctor or qualified nurse take blood intraveinously from my person, and secondly because the place where i was working was a dirty warehouse and had no sterile areas in which it would be comparitivly safe to do the proceedure.

 

again, the employer was unable to provide any kind of concrete evidence as to how they were legally entitled to have a first aider extract blood from someone, and again they tried to discipline me for refusing.

[The GodMother]

OMG they wanted to have a un quailfied person take blood from u for alcohol and drug testing.

 

they may be a first aider but that certainly does not qualify them to do that.

[godpikachu]

OMG they wanted to have a un quailfied person take blood from u for alcohol and drug testing.

 

they may be a first aider but that certainly does not qualify them to do that.

 

 

yep, they reckoned that someone who had done a 4 day first aid course was fully qualified to draw blood from the vein and perform chemical tests on said blood to prove or disprove that you were under the influence of some sort of illegal drugs and/or alcohol.

 

 

and in other news, my magic vest has told me the name of the winner of the grand national for the next 50 years straight.

[The GodMother]

yep, they reckoned that someone who had done a 4 day first aid course was fully qualified to draw blood from the vein and perform chemical tests on said blood to prove or disprove that you were under the influence of some sort of illegal drugs and/or alcohol.

Rolex where did that person get that daft idea?

 

and in other news, my magic vest has told me the name of the winner of the grand national for the next 50 years straight.

 

 

Well dont keep me in suspense who are they? lol

[Allwood]

My partner was very upset when she saw a notice put up on the board in the staff room stating stating that if employees phoned in with any kind of flu even swine flu they would trigger a disciplinary warning....What is going on with employers...swine flu is contagious and can be spread to people even customers that they are serving. This notices is saying that if you are ill and do not turn up for work regardless what the illness is you will be discipline?

 

Can they do this??

[ErikaPNP]

Are they following their own sickness procedure?

 

What does it say in the contracts about attendance management?

 

Do they have any company guidelines on infection control?

[flipper79]

My partner was very upset when she saw a notice put up on the board in the staff room stating stating that if employees phoned in with any kind of flu even swine flu they would trigger a disciplinary warning....What is going on with employers...swine flu is contagious and can be spread to people even customers that they are serving. This notices is saying that if you are ill and do not turn up for work regardless what the illness is you will be discipline?

 

Can they do this??

 

Forget employment law, they could potentially be opening themselves up to litigation from both employees and customers if they are actively trying to force people with contagious illnesses into work. I'd contact the local health and safety office and see what they have to say on the matter.

[Allwood]

Will get my partner to check her contract but I think from previous checking it says nothing about sickness. It is only one page contract with the salient points on but as far as I can remember it say nothing about sickness. I will get back later with more details.

 

My partners also told me the other evening that it says on the notices on the board that all sickness regardless of swine flu will be treated as normal sickness and if people have more than 8 shifts off they will be discipline, also if the have more than 3 shifts off in 3 months they will also be discipline.

 

My partner obtained a handbook before from her employer and I will check it with her later. and get back with info.

 

Has each company suppose to have a company guidelines on infection control.

 

Also her employer has used the recession to change a lots of things with policy which is fare enough but a lots of people have been sacked and a number people have left the company and some people with young children has left the company because it is dangerous working there now as you say it is contagious and young children are vulnerable.

Edited July 18, 2009 by Allwood

[ErikaPNP]

Yes they can do that. There is no reason not to treat it as normal sickness, if any sick period takes a person over the amount of days the attendance management allows for they can be disciplined, no matter what the cause. Even people with known illnesses caused by disability can be "managed out" with this. It is known as dismissal on the grounds of capability. Normal sickness is only not treated as such if the sickness is of a pregnancy related nature, and in some cases if there is an accident/incident in the workplace caused by the employers negligence which results in sick time.

 

What I thought you were referring to was can they discipline a member of staff for one days off? Yes they can if that one day takes them over the amount of allocated sick days in their attendance management.

 

Not every company has to have guidelines re infection control but as it is a supermarket there will be food handling involved, and I assume as with most supermarkets these days, that some food is prepared on the premises? If so then they must have a policy on infection control to comply with food hygiene standards.

[Allwood]

My partner realised that they can discipline for 8 shifts or more but if a person get swine flu can the same principles apply to the 8 shift policy. On her staff notice board it says that swine flu is like an normal flu or cold and there is no quarantine period for it and if an employee get the swine flu they will be discipline in accordance with their sickness period.

 

Not sure about the guidelines for infection control but as you say they do prepared food on the premises but I am sure they must have some sort of a policy on infection control to comply with food hygiene standards but do not know for sure as my partners does not work in that areas of the store.

 

Thanks for your kind reply. I should say that my partner says that most of her colleagues are appalled by the notice put up by the company.