Can you lawfully search your employees?
Yes, in certain circumstances. In Harding V Oldham College an employee who was sacked after her employer searched her bag and found illegal drugs inside has lost her claim for unfair dismissal.
Oldham College (O) operates a zero tolerance policy in respect of illegal drugs on its premises. Amy Harding (H) began working for O in September 2009 and knew that a breach may be deemed gross misconduct.
Smell of cannabis
On 4th September 2020, H’s colleague, told managers that she could smell cannabis coming from H's bag.
H consented to a female trained searcher looking through her belongings. She found cannabis and other drugs paraphernalia in H’s bag.
O suspended H and later dismissed her for gross misconduct. An employment tribunal dismissed her claim for unfair dismissal.
What does the law say?
You must have a clear right to search policy which all employees know about. Do speak to us if you need help to create one.
The employee must expressly consent to the personal search; if they don’t, they can make an allegation of criminal assault.
Do not rely on oral consent to a personal search. Issue the employee with a right to search authorisation form and do not proceed until they have signed it.
The search must be conducted by a member of the same sex, in a private area, with another member of the same sex present. The physical search should also be confined to requesting the employee to empty out the contents of their pockets or bags and to remove any jackets, coats, shoes, or other outer clothing. Don’t look through personal belongings or clothing yourself and or go beyond searching outer clothing.
You may also conduct a physical search of an employee’s work area, such as their desk, filing cabinets, locker, or car if it’s parked on your premises. Again, you will need to obtain their consent.
You can only conduct a personal search of an employee and/or their personal belongings with their express consent. It must be conducted by a member of the same sex, with a same-sex chaperone, in a private area. Don’t physically touch the employee or their property; instead ask them to empty their pockets and bags.