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Right to search

[Policy]

Right to search authorisation

[Form]

The tribunal's ruling

[Weblink]

Unfair dismissal, illegal drugs and the right to search

Zero tolerance

Like many employers, Oldham College (O) operates a zero tolerance policy in respect of illegal drugs on its premises. Amy Harding (H) began working for O as its student data and curriculum compliance officer in September 2009.

She knew about O’s zero tolerance policy which said that a breach may be deemed gross misconduct and could result in the employee’s dismissal.

Smell of cannabis

On 4 September 2020, H’s colleague, Sharon Figgins (F), expressed concerns to H that she could smell cannabis in her vicinity. This appeared to be coming from H’s personal bag. F escalated the issue to managers who authorised a search to be conducted of H and her personal belongings.

O had two trained searchers (who were experienced in searching its students) but this was the first search conducted on an employee.

Giving consent

H consented to the search, which was carried out by the female member of trained staff. F acted as a chaperone. During the search, cannabis and other drugs paraphernalia, were found in H’s bag.

As a result of her being in breach of the zero tolerance policy, H was asked to leave O’s premises immediately and suspended from work. She was later dismissed for gross misconduct.

H brought a claim for unfair dismissal where she raised various allegations about the search conducted by O’s staff.

Unfair dismissal

These were rejected by the tribunal which also found that H’s dismissal was fair and reasonable in the circumstances (see The next step ). O succeeded in this case because it stuck to the rules on personal searches. What do you need to know?

To stay on the right side of the law you must have a clear right to search policy which all employees know about - we’ve created one that you can use (see The next step ). The employee must expressly consent to the personal search; if they don’t they can make an allegation of criminal assault.

Tip. Don’t rely on verbal consent to a personal search. Issue the employee with our right to search authorisation form and don’t proceed until they’ve signed it (see The next step ).

Tip. 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.

Tip. You may also conduct a physical search of an employee’s work area, e.g. desk, filing cabinets, locker, or car if it’s parked on your premises. Again, you’ll need to obtain their consent.

For the tribunal’s ruling in this case, a right to search policy and a right to search authorisation form, visit https://www.tips-and-advice.co.uk , Download Zone, year 23, issue 09.