If there has been an increase in the number of thefts at work, can an employer enforce the right to search employees’ cars? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
We have a clause in our employment contracts relating to the right to search our employees (lockers and cars). Whilst we haven’t done this frequently, we are trying to tighten up on our security procedures as a direct result of an increase in the number of incidents of internal theft.
The question has subsequently been posed as to whether or not searching their cars (in our car park) is something that we can enforce. The employee would be present when the car is searched.
Legal advice:
Esther Smith, partner, Thomas Eggar
Obviously if you want to extend your right to search employees’ vehicles you would need to extend your current policy to cover this and explain fully to them why you wanted to make this change.
Searching cars is a little extreme, but I can understand why you would want to implement it. However, if you tightened up your on-site searches you shouldn’t need to implement this step at all.
I can envisage employees objecting to the search of their cars on the basis that it is too intrusive. However if you have good grounds to believe that an employee may have secreted company property in their car you may take the view to request to search and if the employee says no, or objects to this, to draw an adverse inference from this.
However if you go ahead and carry out the search and find something in the vehicle to incriminate the employee concerned then the employee is not likely to sit down and argue the niceties of whether or not you had the right to carry out the search, as effectively they would have been caught with their pants down.
In summary if you want to do this, you need to amend your policy to provide for it and justify the reasoning behind it, but I can envisage the employees in question having an issue, with some justification in my view.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
In short, no. You cannot force someone to submit to a search either of themselves or their property. What would happen is that the employee would be in breach of the express term of the contract and arguably would be in breach of two important implied terms-to co-operate with the employer and to obey lawful and reasonable instructions.
It would be possible to argue in certain cases that the refusal amounted to a breach of trust and confidence but it’s a tricky area so take specific advice.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
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