Employees belongings searches.

[Mynight]

Hello my Google fu has let me down.

My sister works in a restaurant and today the manager alone took it upon herself to search through the bags in the lockers without telling the employees. She found drugs in one of the workers bags (idiot I know) and fired him on the spot.

Now I've checked her contract which doesn't mention having the right to search and from what I thought;

*has to be in the contract
*has to have a witness present
*has to be done in front of employee


Now I know he had drugs but as far as I can work out this was done illegally.

Does anyone know for sure?

Edit: a few updates rather than leaving them in subsequent posts;

*contract has no stipulations about drugs/alcohol or the employer exercising their right to search.
*drug found was a minute quantity of canabis (street caution at best if it were a police matter).
*employee has worked there around 18 months.
*search was conducted;
-by a female manager on a males bag.
-there was no witness present.
-employee was not present.
-appears the employee was specifically targeted.

 

[Dave85]

If she did not have a witness I imagine he could claim they where planted especially if she did not even tell them she was going to search them. Not saying that he should but sounds like the managers left herself open to this.

Edit: http://www.nidirect.gov.uk/drug-testing-and-employee-monitoring

"Searches should respect privacy, be carried out by a member of the same sex, for example, and take place with a witness present. You can't be made to take a drugs test, but if you refuse when your employer has good grounds for testing you under a proper occupational health and safety policy, you may face disciplinary action This could include being sacked."

Not found anything specific for UK yet but I imagine its close.

 

[chillidog]

hope this helps you

Employers' right of search
More and more companies nowadays have a Search Policy and carry out regular searches of their staff. It is vital that any company who does so actually has an express contractual term covering the right of search. The right of search normally extends to the individual’s pockets, clothing, bags and lockers (if applicable) and in some instances to their person as well as to cars on company premises. The following procedures should apply:
Searches should be carried out by a manager and a witness both of the same sex as the employee to be searched.
A witness should be present at all times to ensure the search is in line with the procedure; as a general rule the employee should be given the opportunity to have their own witness present.
So far as possible, the search should be made out of view from the public and other members of staff.
Searches should be random and all employees should be subject to be searched, unless there is a reasonable belief someone has concealed company property, with a view to removing it from company premises.
All searches must be recorded fully by management.
One designated senior manager should monitor all search reports to ensure fairness, consistency and that the same staff are not been targeted all of the time.
Contractual rights to search
If you have a contractual right of search but have never really enforced it, you must re-launch this and give staff fair warning that as of a certain date regular random searches will be taking place. Staff should be notified of what to expect, e.g. what the procedure will be and why you have decided to go down this route. It is very important that all managers, team leaders, supervisors, etc. who may be involved in the search process are fully trained prior to carrying out any searches and ideally refresher training should be carried out at least annually.
Employees should be informed of the reason for the search before it is carried out. For this the manager should:
Explain that they have a policy of carrying out random searches of employees.
Gain the consent of the individual to participate in the search.
Point out that if they refuse to agree to the search then the company will call the police and ask them to carry out the search.
Also let it be known that if the individual leaves the premises, having refused to be searched, and before the police arrive, that the company will take this into account in reaching any disciplinary decision. The normal result of leaving the premises in these circumstances would be dismissal on the grounds of having ‘reasonable grounds for believing that they have been involved in gross misconduct'.
When searching lockers, bags, etc. the manager should always ask the employee to empty things out first before then checking to see if there is anything concealed within.
On searching the person the manager may ask the individual to undo their cuffs, unroll rolled up sleeves, ask staff to remove outer garments such as aprons or waistcoats, shoes and socks but should not, under any circumstances, ask the employee to remove any item of clothing that would expose their underwear.
The manager may ask the individual to empty their pockets and where possible turn them inside out so they can clearly view what, if anything is contained.
The manager may ask the individual to turn over their waistband.
When carrying out a search, under no circumstances should a manager touch the person being searched. If they do not follow these guidelines and go beyond the bounds of reasonableness then they could find that they will be cited for assault and even possible indecent assault if they have asked people to remove their clothes. If this was to happen then the company could be vicariously liable, if it is shown that adequate training and guidance for managers has not been provided.
]

 

[Mynight]

Looks like he's got a pretty solid case from that then.

*Staff searched being male, a single female manager no witness and he wasn't there.
*She only searched his bag no other staffs.
*nothing in contract


Found out it was a tiny amount of canabis so hardly something that could count against him. Apparently he wasn't/hasn't been under the influence at work.

I know my sister wants the manager gone as from what I've been told this isn't the first questionable thing she's done.

Is it the case of sending him to go speak to the citizens advise bureau now?

Sorry for these questions although I'm an employer I have never had to deal with this sort of thing. Heck if my 2 staff can fit a 42u rack into their bag good on them lol.

Thank you both.

 

["andy"]

all he would have to do is deny it and he will get his job back.

manager will probably get in trouble too

what sort of size company is this anyway ? if i was found with drugs at work yes i would end up eventually being sacked for gross misconduct under our anti drugs policy but before that there would be paid suspension while an investigation takes place. then a disciplinary hearing

i didnt think you could just instantly fire people instantly

 

[Rroff]

If hes been there less than a year he may not have much of a leg to stand on anyhow and for a lot of stuff you don't really have any rights until 2 years now. If hes been there 2 years or more he would be in a good position to take legal action however as it doesn't sound like the search was done properly.

 

[Jonnybmac]

i wouldnt be pointing blame on to the person searching saying they planted it. just that someone could have unless it was tucked away inside a locker..

end of the day he was foolish enough to take drugs to work with him, and got caught out. the person was only doing their job, obviously not aware of the employment law regarding it.

id plead ignorant, explain they didnt know and could have been planted there. get your friend to go to the local festival shop and get one of them cans that can spoof tests(yes they work)

but in the meantime, tell him to quit smoking weed, and drink plenty of grapejuice daily to help flush it out quicker as id imagine he'll be due a drugs test shortly.

also look for a new job if he continues to enjoy smoking it

 

["andy"]

If hes been there less than a year he may not have much of a leg to stand on anyhow and for a lot of stuff you don't really have any rights until 2 years now. If hes been there 2 years or more he would be in a good position to take legal action however as it doesn't sound like the search was done properly.

you need to be there a certain time to go to a tribunal (although the rules just changed)

this should surely never get that far

the person was only doing their job, obviously not aware of the employment law regarding it.

was she ? or was she snooping ? or even stealing from staff ?

without good reason or suspicion then there is no need for a restaurant manager to be looking though peoples personal belongings.

 

[Mynight]

He's been there since it opened apparently so I think 18 months. It's only a small company 3 sites with 21 staff.

I do agree taking drugs to work was a stupid thing to do from what I've heard he's not the brightest person around.

However the manager apparently has a real issue with English staff bordering on racist.

Cans that can spoof tests?

 

[Glaucus]

Why would you want to spoof test.

Find another job and fight it, seems pretty clear cut. Just get a pay out, they are unlikely to fight it, being so clear cut if what chilidog posted is correct.

Probably best going to CAB and getting proper advice.

 

[Rroff]

Theres nothing to stop an employer opening up their lockers - the contract should have something about what their policy is in this regard.

Where they went wrong was that they should have had the employee's consent and presence as well as a witness - this then puts the law firmly on their side if something inappropriate is found whereas if they "found" something without the employee and/or witness there, they are on much shakier ground and opening themselves up to wrongful dismissal or similiar.

 

[Energize]

Fired on the spot?

Does the manager have GC-MS equipment in her office? Unlikely. It could have been anything for all she knows, there is no proof that what she found was drugs.

but in the meantime, tell him to quit smoking weed, and drink plenty of grapejuice daily to help flush it out quicker as id imagine he'll be due a drugs test shortly.

Grapefruit juice increases the concentration of drugs by reducing their metabolism.

 

[asim18]

What drug was it? This is very important.

Edit: Just read ur second post. Is this a joke? How about she gets rid of all the alcohol first. Stupid manager.

 

[Energize]

Alcohol isn't illegal, there's a big difference between bringing something illegal into work and something legal.

As it stands the manager has no idea what the substance is because it has not been analyzed, so firing the person was completely the wrong action to take.

 

[meandu229]

Alcohol isn't illegal, there's a big difference between bringing something illegal into work and something legal.

As it stands the manager has no idea what the substance is because it has not been analyzed, so firing the person was completely the wrong action to take.

Wonder if she kept it or threw it away?

 

[Energize]

Can't imagine she kept it if she thought it were illegal drugs, and surely the police would have had a word with the employee if it was taken to the police and turned out to be an illegal drug.

So either she doesn't have it or it's not illegal.

 

[Rroff]

Alcohol isn't illegal, there's a big difference between bringing something illegal into work and something legal.

As it stands the manager has no idea what the substance is because it has not been analyzed, so firing the person was completely the wrong action to take.

My contract forbids an employee to bring alcohol onto the premises without first informing a manager and consumption on the premises is completely forbidden.

 

[asim18]

Alcohol isn't illegal, there's a big difference between bringing something illegal into work and something legal.

It's not as simple as that. Legality doesn't always dictate right/wrong because some things are outlawed for economic reasons or to satisfy governmental greed (cannabis included). Therefore judging someone for having a bit of weed is utter hypocrisy if you know you're going to be chilling out with a glass of alcohol later. Doesn't matter how bad the government tells you it is, it's only bad for them because it's untaxable cash flow - which is why you shouldn't base your reasoning on what the government does or doesn't allow you to do.

If someone devised a way to get a 2 litres of high grade vodka per sq foot per month using nothing but light and water it would be outlawed within 42 minutes.

 

[Mynight]

As far as I know she didn't keep it so would be easy to swap it out for another herb ha.

Whilst I could understand if the employee has been high whilst working to fire him but from what I know he never smoked the stuff before or whilst at work only in his free time. I don't agree with drugs being on the premises but its doesn't sound like a sackable offence to me.

There doesn't appear to be any stipulations in the contract regarding drugs or alcohol.

In fact the contract appears to be written by a child I remember finding a spelling mistake in it when I read it a year or so ago.

 

[PobodY]

Something like; "Cannabis? No, that's a herbal tisane."?