Inspection: Laws & Regulations

Many companies and institutions have established rules regarding the bringing in and removal of goods, primarily for security reasons and to prevent theft. Alongside the obligation to adhere to these rules of conduct lies the employer’s responsibility to monitor compliance with agreements. One of the tools available to the employer is inspection. This visual check of the contents of, for example, bags is an important tool for ensuring compliance. There is a legal obligation only in limited cases; however, the basis for such measures is usually found in a demonstrated and documented necessity—such as theft—when less intrusive means have failed (subsidiarity). In such cases, recourse may be had to the Civil Code.

Book 5, Article 1 of the Civil Code defines ownership as the most comprehensive right one can have over a thing. To protect their property, the owner may fence off their premises, impose conditions on entry, and establish rules governing the removal of goods to prevent theft and embezzlement. One such rule may be the visitation policy, often included in the company or house rules.

In the context of security, a search refers to a visual inspection of the contents of bags, boxes, and crates carried by individuals, as well as of clothing (pockets) and vehicles. It is a measure taken in the interest of maintaining order, as determined by the authorized party. The authorized party is the organization and its legal representative, usually the CEO. The search policy may apply only to non-employees, which avoids a discussion with the works council regarding the policy’s legality. However, with the employer as the authorized party, the search policy may indeed also apply to or specifically target employees.

Seaport operators subject to EU Regulation 725/2004 are required to take measures to prevent weapons or other dangerous substances and devices intended for use against persons, ships, or ports—the transport of which is prohibited—from being brought into the port facility or on board a ship (EU Regulation 725/2004, Part A, Article 16.3, paragraph 1). In line with this, Part B, Article 16.18 states that all persons wishing to enter the port facility must be subject to body searches and searches of their belongings (which is usually referred to as “searching”). Based on a mandatory risk assessment of the port facility, and with reference to a 2004 opinion of the European Economic and Social Committee (EESC), it may also be recommended to conduct body searches on those leaving the port facility.

In other cases, companies will have to rely on contract law, as set forth in the Civil Code (BW). A contract exists when one or more parties (natural persons or legal entities) enter into obligations of any kind with one or more other parties (such as the delivery of goods, services, or labor). The obligation to cooperate with entry and/or exit checks is then one of the obligations arising from the contract. For employees with an employment contract under civil law, the legal basis for the search policy lies in the employer’s authority to issue regulations in the interest of order (Article 7:660 BW). The employee is obligated to comply with these rules of order. The obligation for employees to comply with the rules of order is often enshrined in company regulations or directly in the employment contract. If an employee believes that their privacy is being seriously violated, they may also invoke the Civil Code, specifically regarding “good employment practices” (Article 7:611 of the Civil Code) and “tort” (Article 6:162 of the Civil Code). The central question is whether the search is proportionate to the specific situation and the individual interests of the employee, as well as the aforementioned demonstrated necessity and subsidiarity.

If the employment contract does not provide for the application of a visitation policy and the company regulations do not include such a provision either, it is advisable—and may be mandatory—to obtain the works council’s consent prior to implementation. The need to first consult the works council depends on whether there is a “measure” within the meaning of Article 27(1), preamble and subparagraph (l), of the Works Councils Act (a regulation concerning measures aimed at or suitable for monitoring or checking the presence, behavior, or performance of persons working in the company). A technical facility is present when detection gates or baggage scanning equipment are used. A manually conducted exit search (e.g., inspection of carry-on luggage) does not fall under the right of consent because it does not constitute a technical facility. If an entry check also targets employees to prevent them from bringing in objects that pose a threat to the safety of personnel in the building, this may constitute a “regulation concerning working conditions” within the meaning of Article 27(1), preamble and subparagraph (d), of the WOR, for which the Works Council has the right of consent (with the exception of those companies that can invoke EU Regulation 725/2004).

In addition to the points mentioned above, there are a number of important considerations to keep in mind when conducting site visits:

•  Persons who carry out the visitation arrangements must be designated for that purpose by the entitled party.
•  Participation in the evaluation is voluntary, so prior consent must be obtained from the person(s) concerned.
•  Individuals who refuse to cooperate with the inspection are advised of the consequences (under labor law).
•  Visits are conducted with due regard for privacy, meaning they take place away from other people and, if possible, in a separate room.
•  To avoid unpleasant disputes later on, visits take place in the presence of a third party or are monitored by video surveillance.

 If not everyone (or everyone within a specific category, such as visitors or freight carriers) is subject to inspection, a random number generator—such as the inspection selector—must be used to select individuals and vehicles, thereby ensuring that the sample is randomized in an objective manner. Exceptions to this rule may only be made based on facts and circumstances (i.e., objectively).

 It must be made clear to everyone—including visitors (customers), suppliers, and employees—upon entry that they may be subject to certain rules. Rules must be “clearly communicated”; people must be able to take note of them without any difficulty. These rules could be listed on a sign at the entrance, displayed as a poster in the reception area, or printed on the back of an admission ticket.

 To prevent third-party personnel—such as those from staffing agencies—who come to work at the site from assuming that the rules do not apply to them because they have a different employer, this provision must be included as part of the contract with the third party. This provision may stipulate that the third party agrees with its personnel or subcontractors that they, too, are bound by the site access regulations.