Employers monitor workers in several ways, such as:
- drug testing
- bag or locker searches
- checking a worker’s emails or the websites they look at
Data protection law covers any monitoring that involves taking data, images, or drug testing.
If workers are unhappy about being monitored, they can check their staff handbook or contract to see if the employer is allowed to do this.
Employers should have a written policy on searching. Searches should:
- respect privacy
- be done by a member of the same biological sex
- be done with a witness present
If a search or drug test is badly handled, workers might have a claim for discrimination, assault or false imprisonment.
Is it worth putting it in a drug and alcohol policy?
Yes, to assist in taking disciplinary action if an employee refuses to reasonable co-operate with a search for alcohol or drugs.
Employers must be careful when exercising their right to search an employee because they have an implied duty of trust and confidence towards their employees (a duty which is of course mutual).
Where consent is given, what procedures should apply?
If an employee or employees indicate they will agree to be searched, care should be taken in the way a search is conducted. The following are important considerations:
- The search should be conducted by a manager of the same biological sex as the employee and who has been suitably trained to carry out the search;
- Before conducting the search, the manager should explain to the employee the reason for the search;
- Obtain the employee’s consent prior to carrying out the search;
- The search should be carried out in front of a witness;
- Employees should not be asked to remove any clothing that would expose the employee’s underwear. If there is enough suspicion that a further search is required, then the police should be called;
- The search should not be conducted in the presence of other staff or members of the public as this could be embarrassing;
- Except with compelling evidence of wrongdoing, a search policy, in general, should apply to and be enforced on all employees;
- A search of employee’s property should be carried out with care and respect. The employee should be asked to empty things out first such as their pockets or the contents of their bags. If the employee’s property is damaged during a search, then the employee may be able to claim it back from the employer particularly where there has been found to have been no misconduct;
- A log should be kept of the search results, particularly where there has been misconduct; and
- The log should be kept confidential and should be monitored by senior staff to ensure its randomness, reasonableness, fairness, and consistency.
Ideally a search policy and the procedure should be set out in an employee handbook (if one exists) or be set out with an organisation’s other policies such as its disciplinary and grievance policy.
Racoo Screening works with organisations of all sizes to help implement effective workplace drug and alcohol testing policies that comply with national and, where relevant, international regulations. We also offer a complete drug and alcohol testing service, e-learning packages, and staff training. To find out more, contact us here.