When a poorly conducted locker search can invalidate a disciplinary dismissal

Searches of employees' lockers, bags or personal belongings are a tool that many companies use when they suspect irregularities such as theft or pilferage. The problem arises when these searches are not conducted properly.

Recent case law is very clear: when these searches are not carried out with the required legal safeguards, they can invalidate the evidence obtained and render a disciplinary dismissal unfair or even null and void.

Although it may seem like a minor or purely operational issue, it is an aspect with very important legal consequences and is the source of many labour disputes.

What does the law say about locker searches?

Article 18 of the Workers' Statute regulates when and how searches of workers, their lockers or their personal belongings may be carried out. These searches are only legal if all of the following requirements are met:

• The search must be necessary to protect the property of the company or other workers.
• It must be carried out with respect for the dignity and privacy of the employee.
• Whenever possible, it must be carried out in the presence of an employee representative or another employee as a witness.

This last point is key. If there is no one to guarantee the objectivity of the search, its validity may be called into question.

Why courts are so strict

Courts consider that opening a locker or inspecting personal belongings constitutes a direct intrusion into personal privacy.

For this reason:

• Any deviation from legal procedure may render the evidence inadmissible.
• Evidence obtained illegally cannot be used to justify disciplinary dismissal.
• Even if the conduct attributed to the employee is true, the lack of valid evidence can render the dismissal unfair.

In the most serious cases, when fundamental rights are violated, the courts may even declare the dismissal null and void.

Common errors that are being penalised

Recent rulings highlight a number of recurring errors in the execution of these searches:

• Searches carried out without the presence of the employee or legal representatives, without guarantees of objectivity.
• Opening of lockers during sick leave, holidays or justified absences, without protocol or prior notification.
• Indiscriminate access to personal belongings without specific justification.

These formal defects have been decisive in many disciplinary dismissals being declared unfair, despite the existence of evidence of irregular conduct.

What are the consequences for the company?

Poor execution of the search can have a direct impact:

• Admissibility of evidence in legal proceedings.
• Loss of the evidentiary basis for disciplinary dismissal.
• Declaration of unfair dismissal, with the obligation to compensate or reinstate the employee.
• In serious cases, nullity of dismissal, with mandatory reinstatement and payment of lost wages.

Key recommendations

To minimise risks and ensure legal certainty, it is advisable to:

• Have an internal protocol on searches of lockers and personal belongings.
• Train middle managers and HR managers on the content and limits of Article 18 of the ET.
• Always ensure the presence of witnesses or legal representatives whenever possible.
• Document in detail the reason for, the conduct of and the outcome of the search.

Proper application of the regulations is not a mere formality: it is an essential element for the company to be able to solidly defend any disciplinary decision in court.