WorkLife

Our thoughts on the world of employment law - and beyond.

Confidentiality in the home - how to protect against a rogue Ms (or Mr) Poppins

No doubt you will have read in the press about the 'Mary Poppins' nanny Emma Currie who has been 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 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 unacceptable conduct that some domestic staff can get up to behind their employers' backs. Such stories expose the extent to which the domestic working relationship depends on the common law precept of 'mutual trust and confidence' and the devastation that a breach of that trust can leave in its wake.

Clearly, an abuse of the position of trust is the exception rather than the rule. However, it can often be difficult to marry the intrinsically formal employment relationship between home owner/parent and household employee given a necessarily private and personal working environment. 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 the whole of their employing family's private life, so particular care is needed.  

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

  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!).
  2. All employers, of whatever size, are responsible for ensuring that their employees have the right to live and work in the UK.  The recruitment of nannies, au pairs, household cleaners or housekeepers typically attracts significant numbers of applications from foreign nationals, and this can give rise to an added risk of race discrimination. 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 caste. Conducting immigration checks at the end of the process, and requiring the same details and documents of everyone whom you consider, reduces the risk of indirect race discrimination. 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.
  3. 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 license 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 over 22 is £6.50 per hour; and the offset rate for providing accommodation is £5.08 per day, or £35.56 per week.
  4. Upon termination of the employment, a service occupancy agreement entitles the employer to remove the individual from their property (provided it is so drafted); which would be of particular import in the case of misconduct or breach of contract by the employee. 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.
  5. The employment contract should explicitly cover confidentiality, or the employee should additionally be required to sign a confidentiality agreement before starting work. Domestic staff might deal with or learn of any kind of sensitive personal information about the family through their work (including medical, business, finances, sexual behaviour, childcare or even just familial issues), and all employees should be capable of remaining discrete 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 any profits made through the sale of any story or photographs). 
  6. Following on from the issue of confidentiality comes the question of physical 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 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. 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. 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. Last, and by no means least, employees who are caring for children MUST have appropriate safeguarding checks, ideally check that First Aid training is up to date and make clear in the employment contract what is expected and required for practical day to day health and safety.

Domestic employers could learn an interesting lesson from the case of Emma Currie and the accusations made by both sides. During the trial at the Old Bailey the defendant has apparently made counter-allegations regarding Mrs Appleyard-Ley's own personal life, and made what must have been particularly hurtful allegations regarding her behaviour 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.

Would the tale of Mary Poppins have been ruined if Mr and Mrs Banks had sat her down and required her to sign an employment contract including a rigorous confidentiality agreement – yes perhaps. Then again, was Dick Van Dyke's painful attempt at a cockney accent grounds for disciplinary action in itself? At the risk of ruining the fairy tale, Mary Poppins was not in fact a real person (there, I've said it) and therefore, it may be unromantic, but putting in place appropriate protection in the terms of the contract makes everyone clear where they stand and protects the family. 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. Now, where's my carpet bag...

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