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Employers can generally manage their business in a way that the employer considers best; such that it ensures a safe working environment for employees. However sometimes the line between what the business of the employer is and what is personal/private to the employee can sometimes blur. As I’ve discussed previously, social media use (read here) is a typical case of this.

Another example of where the water can get murky is where an employer conducts a search of an employee’s belongings. An employer might want to do in an investigation into misconduct and allegations of theft, for example. This is another situation that requires a close examination of employer rights and employee rights. While an employer should be able to carry out their business efficiently, effectively and safely, an employee also has certain rights to privacy.

Jack de Flamingh, Partner and Phillip Magness, National Forensic Technology Manager, of Corrs Chambers Westgarth have written a very interesting article published in the New South Wales Law Society Journal (September 2018) called “The limitations of a modern day bag search”, which gives an overview of an employer’s ability to lawfully inspect personal devices of employees and considerations of employee privacy. I recommend you read the article in full here: https://lawsociety.cld.bz/LSJ-September-2018/76/

Here is a summary of some of the points they make in the article. Where applicable, I have extended the points to searches of belongings more generally:

  • There is no general right for employers to compel an employee to produce their belongings for search by the employer. Obviously the situation is different for the employee if the search is being conducted by the police or subject to a court order.
  • Information provided to or accessed by the employee in the course of their employment is the property of the employer, particular where it is the employer’s confidential information. It does not matter that the information might be stored on, or accessed using a device that is the employee’s personal property; it is still the employer’s property.
  • Employers can give themselves a contractual right to conduct searches, have a workplace policy regarding searches and/or can give such an direction when it is reasonable and lawful to do so.
  • An employee can be asked to voluntarily provide their phone or belongings to be searched and in many cases, employees will volunteer their personal device or bag for search. If an employee refuses, it often becomes an issue of whether there is a contractual right for the employer to require it, a workplace policy that mandates it, and/or whether the direction is lawful and reasonable and what the consequences are that result from the refusal to comply with such a direction.
  • The rights of an employer to access an employee’s personal device (absent a court order) remain largely untested.
  • Employees need to be aware of what is their employer’s property and take contractual obligations and workplace policies seriously.

Each situation needs to be assessed on a case by case basis. These aren’t rules, rather pointers that employers and employees need to think about in terms of what is required of and suits their business.

If you are an employer who wants to be able to conduct searches of employees’ bags, lockers, phones or other belongings for certain reasons, get advice about your employment contracts and policies.