Searching employees and the limitations

[mickeyJ]

Hello all. I searched for a recent thread relating to this but could not find one, so here I go.

 

My wife works for an established Uk retailer and has recently informed me that her manager has stated that each employee will be subject to physical body searches three times a day and that this would include the requirement to lift up ones top to expose the waistband and midrift (belly button etc), thus exposing a large area of skin. Also, trouser legs are to be rolled up and socks rolled down.

I am a police officer and we are not permitted to remove a baseball cap from a detained person until they are out of sight of the public, and for good reason.

I can't believe that a retail employer is allowed to require the exposure of flesh from female employees (in particular), some of which are very young, or risk discipline procedures.

My wife is 27 and she said she feels extremely uncomfortable by this. I understand the employers reasonable right to search bags etc, but this feels inappropriate and degrading, and all that three times a day, five days a week?? The searches also take place on the shop floor in full view of the public. Why should any one, let alone young women, be made to expose themselves, however minor, in a public place 3 times a day?

 

The terms and conditions of her employment state:

 

" the company reserves the right to inspect and search any parcel, briefcase, handbag, item of clothing, car, or any other item which you bring onto, or wear on, company premises. The search will be conducted in the presence of another person and you will have the right to ensure that another independent witness is present if so required."

 

no where within that statement is it worded to include the maneuvering of clothing in order to expose bare skin (too see if you have something tucked in your waistband).

 

This is a new technique they are using since the company has merged with another. My wife has signed or agreed to nothing which allows this kind of violation, and i firmly believe it is a violation. Management only say, "these are the rules".

 

It is neither reasonable or proportionate to do things in this way. I am incensed that any employee, let alone my wife, should have to accept this every single day.

 

If any one has some constructive feedback it would be greatly appreciated. Terms and conditions of employment aside, this goes too far.

 

Best regards.

[snugs1235]

Hi,

 

that sounds very dodgy to me. I admit that I do not know about regulations or such, but I personally would not agree to it!

 

It might be worth contacting the retailers head office and asking if this behaviour is acceptable. Otherwise you could contact a solicitor, some offer a free intial visit, or their is Community Legal Advice who can help people on low incomes.

 

Is the person doing the searches male or female? Perhaps there could be a case for some type of sexual harrasment case (please dont anyone shout at me if I am wrong) it would be the first thing that I would think if this was me. Plus what is the 3 times a day thing about? Surely if it was really genuine they would do a search on a person when they leave work?

 

Please keep us informed.

[Gbarbm]

I work for a large well known supermarket chain on a Saturday.

In the staff areas there are signs stating that you may be subjected to random searches.

These searches consist of removing your shoes and turning out your pockets in the presence of a supervisor and the security guard. One if those carrying out the search must be the same gender as the one being searched.

What you have said sounds really odd.. I felt uncomfortable reading it so I can imagine how your wife must feel!

How would they deal with a Muslim woman who doesn't even show bare flesh to her own father.

Would your wife consider ringing head office to run this past them and also tell her to have a word with the USDAW rep

[honeybee13]

Hello and welcome to CAG.

 

I'll move your thread to the employment forum where you should get further help.

 

My best, HB

[mickeyJ]

Hello and welcome to CAG.

 

I'll move your thread to the employment forum where you should get further help.

 

My best, HB

 

Thank you, i did think it belonged there but couldnt work out how to get it there. Strange that a muslim employee was mentioned as there is a young muslim supervisor at the store who is back at work tomorrow.. Will be interesting to see how things work in that case. If the company change policy on the basis of religion, then that means everyone is being discriminated against.

Edited April 23, 2012 by mickeyJ

[goboy]

Where my aunt works in retail they did that for years but my aunt did not mine turning out her pockets or taking off her shoes, but one day she was stopped by 2 managers saying that they were doing a pocket searches, she did not mine one manage asking her to do this, but the other manager had bully her before and she said that they should not be doing this to staff as it was illegal. Since then they have stopped doing it in the store. It is illegal for them to do this unless they suspect the employee is stealing from the store. They do this in all big retailers but staff lets them get away with it .

 

Surely as a police officer you should know this and tell you wife to tell them that her partner is a police officer and they should not be doing this. They can however search the lockers but not staff.

[mickeyJ]

Where my aunt works in retail they did that for years but my aunt did not mine turning out her pockets or taking off her shoes, but one day she was stopped by 2 managers saying that they were doing a pocket searches, she did not mine one manage asking her to do this, but the other manager had bully her before and she said that they should not be doing this to staff as it was illegal. Since then they have stopped doing it in the store. It is illegal for them to do this unless they suspect the employee is stealing from the store. They do this in all big retailers but staff lets them get away with it .

 

Surely as a police officer you should know this and tell you wife to tell them that her partner is a police officer and they should not be doing this. They can however search the lockers but not staff.

 

as a police officer, I have a working knowledge of criminal law, not the maze that is employment law and company terms and conditions. It is a complex legal field, hence why I came on here.

[goboy]

That is what my aunt told her employer that her relative is in the police force and she was advised that they should not be searching employees.

 

Does you wife have a staff hand book see what it says in it about searching staff. I really do not think that they can search employees and it is illegal.

[assisted blonde]

Regardless of whether it is once a day or 3 times a day it should carried out on the shop floor, random serchs are acceptable in many jobs but just pockets, bags etc trouser legs I could just about undrstand but no no no to rolling up tops etc unless there were serious grounds to suspect an employee of theft in which case it should only be carried out with the employees agreement by a member of the same sex, with an independent witness. This whole scenario sounds wrong to me.

[snugs1235]

Have you thought about contacting a union? They may not be able to do anything because your wife is not already a member but they may be able to tell you what her rights are, or where to find out what they are.

 

I was a member of the Trade and General Workers, before I became a housewife and they were great at giving information on things like this.

[lbruk]

Searches are allowed, turning out pockets emptying bags etc, what isn't allowed is for them to touch you or empty your bag for you. What you have to remember is only the police have the right of search, I have never heard of searches needing to show bare skin, I would think that comes under sexual harassment, especially if it under the threat of Discplinary action.

 

It sounds completely unacceptable, and I would have to ask what evidence they have that doing this type of search produces results?

 

I certainly would raise a grievance here. To someone that isn't dishonest, I don't believe that being searched is a problem, pockets, coats, bags etc, but I would take issue to raising shirt etc.

[goboy]

I still think it is illegal to search staff, are all staff searched including managers, or is it just the shop floor staff. I can only go on what my aunt told me and she has had legal advice on it. Also, she told them that they should not be doing as a relative is in the police force said so. Since then they do not do any searches on shop floor staff. She should look in the staff handbook and it has it in there as well, but they have changed that as well.

Therefore I think it is illegal.

 

She should raise grievance about that manager as some of them are power crazy.

Edited April 24, 2012 by goboy

[lbruk]

it is legal. a good question there is if the managers are searched as well? I know when i was in retail i used to search the managers and they used to search me randomly. We also used to search senior visitors and their vehicles.

[Sidewinder]

It is a complex area. There is nothing whatsoever illegal in searching staff providing that the member of staff has given their explicit permission to be searched, and this is normally contained in a term of the contract of employment. The search however must be carried out in private and by a member of staff of the same sex if that is desired. Touching or any form of contact is unlawful unless specific permission is granted and the employee should be asked before each search takes place as permission, even if previously given, can be withdrawn at any time. Contact without permission, or where permission has been withdrawn may easily be considered an assault or a trespass against the person, so is covered by both criminal and civil law.

 

Where an employee withdraws permission for a search, this could render them liable to disciplinary action, but equally there could be a counter argument of a breach of mutual trust and confidence, and the employee could, in certain circumstances make a case for Constructive Dismissal. The success or otherwise of such an allegation would depend very much on the nature of a search, the frequency, reasons for searches being necessary etc. Naturally a business where large amounts of cash or valuables were being handled, and with an increased risk (or history) of theft could demonstrate that more regular searches were necessary than in a business with a lesser risk. An employer providing privacy and same sex attention, with a sound written policy describing the nature and purpose of searches would be on safer ground in defending such an allegation. As pointed out above, it is also good practice to ensure that ALL staff including management are treated in the same manner.

 

I agree with the general sentiments above in that this sounds overly intrusive and disproportionate to the degree of risk, so the employer should have a clear written policy, applied equally, and the search should be appropriate to the degree of risk. The search should be carried out in private and the employee should be asked before each search whether they consent - this should ideally be recorded in writing by signing a consent form at each search. Touching or patting down should not be allowed unless absolutely necessary and with full consent.

 

A grievance sounds appropriate here expressing concern at the nature and frequency of searches, but in itself it is lawful for an employer to do this providing that there is consent - that is the keyword.

[Jimbob1987]

Employers can only request you empty bag, pockets, car etc. they cannot go looking through things. If they wish to look further i.e in a car they have to ask the owner to move things or open areas etc boot compartment, glove box. If the employee refuses to follow direction the employer can only get police involved to go further and they MUST have a strong belief that a crime has been commited.

If a body search has to be made it has to be by police and under their limitations and law ie female to female etc.

There must also be log of all searches kept and must be availible when requested by police, courts etc. this is to stop victimisation etc.

 

There is some workplaces that have are exempt from some clauses. This would possibly only be areas such as royal mint, customs etc however these departments are governed by other laws.

 

Hope this makes sense.

 

J

[mickeyJ]

Thank you everyone for your input, unfortunately, I need something concrete in law that says they can't take the searching to this extreme. I can then put it before them with the knowledge that my argument has some basis in law..

 

New nugget of stupidity introduced today....They are now forbidden from using a mobile phone at ANY time during the day. This includes on their lunch breaks (for which they don't get paid). Obviously, I am aware that no phones are allowed on the shop floor etc etc, that goes without saying, but to threaten staff with discipline if they text or phone someone on their lunch hour? Again, I am sure they can't enforce this.

[Jimbob1987]

A company can only dictate what staff can do on breaks if they are paid breaks. If they are not paid for their break they are free to leave there workplace and do as they wish.

 

Sounds like the company are clutching at straws.

 

J

[Gbarbm]

Thank you everyone for your input, unfortunately, I need something concrete in law that says they can't take the searching to this extreme. I can then put it before them with the knowledge that my argument has some basis in law.

 

The laws/regulation would be;

Article 8 of the Human Rights Act - right to privacy and Offences against the person Act (which you probably know more about than me)

If someone touches you without your consent it could be classed as common assault or sexual assault

As a previous poster has said the important factor is the CONSENT

[mickeyJ]

Thank you everyone for your input, unfortunately, I need something concrete in law that says they can't take the searching to this extreme. I can then put it before them with the knowledge that my argument has some basis in law.

 

The laws/regulation would be;

Article 8 of the Human Rights Act - right to privacy and Offences against the person Act (which you probably know more about than me)

If someone touches you without your consent it could be classed as common assault or sexual assault

As a previous poster has said the important factor is the CONSENT

 

Yes, I agree. Fortunately they are not actually touching her, but they are REQUIRING her to lift up her top herself. She feels pressurised to do so in the moment. Can they even legally require it?

[Gbarbm]

Yes but has she consented?

If she does not and has not signed anything to say she consents then if they put her under pressure to do it then that's Article 8 breached right there!

If they attempt to do it again without her consent that is assault within the provisions of the Offences against the person act.

 

The golden rule is

 

No consent.. No touching

[mickeyJ]

Basically, she is getting really upset by it but doesn't want to create any trouble. When she told me, I was livid and started researching immediately. It's easy for me though, I don't work there everyday. She also stated that alot of the employees are uncomfortable, and know it's wrong, but are afraid to say anything. I think my next port of call, is to send a letter to the head office and CC in the manager.

[Gbarbm]

Is your wife or any of the staff in USDAW (union of shop, distributive and allied workers)

If so, it may be worth getting the union rep involved first as the unions usually have solicitors who work for them

[goboy]

They will not be touching but will be looking and that is embarrassing for any worker to be asked to lift up her top. Is it 'your' well known retailer.

[mickeyJ]

Found an interesting passage.....

 

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.

[snugs1235]

I would love to know what company this is, im assuming that the OP is not allowed to say though, right?

 

Did you look into contacting a Trade Union, they would know exactly what the rights and regulations are here?