Briefing

Employees in the home – how to protect against a rogue member of staff

Posted by: Katie Lancaster and Serena Nicholls | Date posted : 17/12/2015

We regularly advise families on employment issues that can arise in relation to household and estate staff (such as housekeepers, nannies, personal assistants, cooks, gardeners and security staff). We know from our experience advising these clients that when the relationship with an employee in the home deteriorates the employer can feel highly vulnerable and there can be an urgent need to safeguard the employer's interests. We consider below the protections an employer of domestic staff can put in place at the outset.

There was a compelling story in the UK press this summer about a nanny, Emma Currie, who was jailed for nine months for theft. She was accused of stealing over £170,000 worth of designer clothes and jewellery from her employer Mrs Appleyard-Ley's home in Belgravia. In her victim impact statement, Mrs Appleyard-Ley expressed her "earth-shattering "pain of discovering that someone who she had taken into her home to care for her children could have abused her position of "absolute trust". The impact upon her children as well as on herself, was clearly something that she felt deeply and which she believed would have long lasting consequences.

It is not hard to uncover further reported tales of domestic staff behaving unacceptably behind their employers' backs. Such stories expose the extent to which the domestic working relationship depends on the common law principle of 'mutual trust and confidence' and the devastation that a breach of that trust can leave in its wake.

Fortunately, an abuse of the position of trust is the exception rather than the rule. However, it can often be difficult for home owners/parents to manage the essentially formal employment relationship with a household employee, given the private and personal working environment which depends upon a greater level of intimacy than a formal office. That being the case, how is it best to ensure a secure and happy (and legally compliant) working relationship within the home? There are the obvious employment law basics to consider: ensuring fair pay, key worker rights, and perhaps offering accommodation. However, at its heart, a member of domestic staff is not operating in a typical office environment and these employees are highly likely to have unsupervised access to their employing family's private life.  Therefore, particular care is needed.  

Domestic staff, employed directly by the individual or family for whom they work, are given all of the same rights in law as employees of large corporations (with some differences regarding service occupancy agreements, as explained below). By contrast, agency staff (for example cleaners hired via an agency to work a few hours per week) are not employees of the individual or family; they remain employed and paid by the agency. It is common for international families with homes in the UK to employ domestic staff either on a full time or part time basis. Therefore it is important to bear in mind some of the key duties and rights particular to this type of employment in the UK.

1. From the outset of the domestic employee placement, compatibility and mutual respect should be at the heart of the relationship. As nannies or housekeepers will be part and parcel of the family's daily life, and potentially privy to personal information of all kinds, confidence in their skills and discretion will be essential for the employer. Aside from references or (often better) personal recommendations, to a large extent this confidence may well have to be founded on interview performance (on both sides – for the employee must be able to have confidence in their employer, too!). We recommend that employers set out clearly from the start what the role involves, ask probing questions during the interview (avoiding questions that could be deemed discriminatory) and, wherever possible, speak to referees.

2. All employers, of whatever size, are responsible for ensuring that their employees have the right to live and work in the UK.  An employer who is found to be illegally employing a foreign national faces both civil and criminal sanctions. The penalty for the civil offence of unknowingly employing a foreign national is up to £20,000 for each illegal worker. However, the employer can establish a statutory defence against the payment of a fine if it can show that it has carried out the correct document checks. An employer who knowingly employs a migrant who does not have the right to work in the UK will commit a criminal offence, which could lead to an unlimited fine and a prison sentence for the employer, and to which there is no defence.

The recruitment of nannies, au pairs, household cleaners or housekeepers typically attracts significant numbers of applications from foreign nationals, so it is particularly important to carry out the required checks. However, if an employer only checks foreign nationals this is likely to be discriminatory because of race and/or nationality. The required 'right to work' checks should ideally be made after the interview process has completed and the successful candidate has been identified on the basis of merit alone: recruitment decisions cannot be based on a candidate's race, nationality or ethnic origins. Conducting immigration checks at the end of the process, and requiring the same details and documents of everyone who is being considered, reduces the risk of discrimination.

3. In addition to obtaining references and checking whether an employee has the right to work in the UK, Disclosure and Barring Service (DBS) criminal record checks should also be carried out. Where an employee will be caring for children or vulnerable adults, an enhanced DBS check will be required.

4. Employers might choose to offer accommodation to their domestic employee, or to provide them with a room in the home, to allow them to perform their duties more effectively. This should be arranged via a 'service occupancy agreement', whereby the member of staff will have a personal licence to occupy the property for as long as they remain in employment with that employer. If the employer requires the employee to reside in the property under such an agreement, for the genuine purpose of allowing the employee to perform their duties more effectively than they could if 'living out', it may apply an 'offset rate' to the applicable national minimum wage (i.e. a reduction). The current national minimum wage rate for an adult aged 21 or over is £6.70 per hour; and the offset rate for providing accommodation is £5.35 per day, or £37.45 per week.

A service occupancy agreement enables the employer to remove the individual from their property on termination of the employment (provided it is so drafted). By contrast, providing accommodation via a tenancy agreement would give the individual further rights of occupation; most significantly by requiring the employer to give notice of termination of the tenancy, which may mean that the employee is entitled to remain in the property beyond the end of the employment contract. This is going to be highly undesirable where the employee has behaved inappropriately or trust has broken down.

5. The employment contract should explicitly cover confidentiality, or the employer should require the employee to sign a separate confidentiality agreement before starting work. Domestic staff might come into contact with a range of sensitive personal information about the family through their work (for example, relating to medical, business, financial, personal or family affairs), and all employees should be capable of remaining discreet and professional in their role.

By requiring an employee to agree to keep personal information gained about their employing family confidential, and through careful drafting of the confidentiality provisions, the employer can ensure they have some recourse should the employee ever breach that agreement (such as an ability to pursue profits made through the sale of any story or photographs).

6. Following on from the issue of confidentiality comes the question of personal property and building security. The contract of employment should cover 'house rules' in terms of access rights and keys, specifying whether and when the employee's guests are permitted on the premises, and (depending on the circumstances) prohibit the taking or dissemination of photographs or videos of the house, the family, their guests, any children and its grounds on the internet or elsewhere.

If the employee lives in the employer's property, the employer should set out expectations regarding behaviour and actions in their private time. For example, can the employee help themselves to things from the fridge; have guests to stay; use the house Wi-Fi for unlimited downloads and borrow items such as clothing, books and dvds? Further press stories report domestic staff "borrowing" clothes without permission, or even of inviting partners round for secret liaisons in the employer's home. To avoid confusion the employer should be clear to set out the boundaries at the start of the relationship!

7. Surveillance is often a part of the security provisions used in a private household.  What about setting up secret cameras to discreetly "check-up" on domestic staff? Certainly, employers should inform their employees of any CCTV points and the purpose for this data collection. There is no problem legally with using such security measures around the home provided that no cameras are installed in the employee's bedroom or in any bathroom, toilet or dressing/changing areas throughout the house. By recording any CCTV images of staff around the home, however, the employer will hold 'personal data' on those individuals and will be acting as a 'data controller' for the purposes of the Data Protection Act 1998. If employers wish to record images of household staff whereby the individuals can be identified, they must register as data controllers with the Information Commissioner's Office.

8. Finally, international families (or their family trusts or companies) employing staff in their UK residences would be well advised to consider who will be managing the staff from day-to-day. Unfortunately bad habits can develop where an employer is frequently absent and we are often asked to handle meetings on behalf of employers with their staff who have misbehaved (one example being where a housekeeper moved her boyfriend into her employers' home while they were away).

Those employing staff in the home could learn an interesting lesson from the case of Emma Currie and the accusations made by both sides. During the trial the defendant made counter-allegations about Mrs Appleyard-Ley's own personal life, and made what must have been particularly hurtful allegations regarding her behaviour as a mother towards her own children. These allegations must have been upsetting for the family to hear and you can only sympathise with their predicament. Furthermore, having lurid (even if unfounded) allegations about how the employer behaves in their own home made public may also impact upon the employer's own personal and, perhaps professional, reputation.

Putting in place appropriate protections at the outset can make all the difference in the event that things go wrong.  Clear contractual terms and ground rules are particularly important in a domestic employment relationship, where personal and professional lives are intrinsically entwined and mutual trust and confidence is so critical.

If you require further information on anything covered in this briefing please contact Katie Lancaster (katie.lancaster@farrer.co.uk; 020 3375 7379) or Serena Nicholls serena.nicholls@farrer.co.uk; 020 3375 7463) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Employment page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP,  December 2015