Childcare Counsel - employment tribunals and theft

1 There seems to be an increase in employees threatening to make claims in an employment tribunal. The owner of the nursery says this can be ignored as it’s rarely the case that claims are issued…

It is no longer necessary for a claimant to pay a fee to issue a claim, and statistics suggest this has resulted in the number of claims being issued more than doubling.

The increase in the possibility of litigation is therefore a real risk. Simply ignoring the threat is generally unwise and may result in a lost opportunity to address the concern at an early stage to avoid it escalating. Further, all employment tribunal judgments are now published online, risking reputational damage.

2 There have been a number of thefts from the staffroom. The nursery is considering using covert CCTV…

There is a risk that such covert surveillance would not be considered lawful, particularly where the prevention of thefts may still be achieved if staff are notified of surveillance.

A recent case in Spain found that an employer breached its employees’ right to private life by using covert cameras to identify workplace thieves. The same result would be likely in the UK.

The lawfulness of the use of covert surveillance involves a balancing of the respective legal rights of the employee and employer: the right to privacy and the right to protect property. Further, data protection standards also extend to surveillance.

Generally, covert surveillance should be used as a last resort, and even then for only a short time.

3 Are employees entitled to be paid if they cannot get into work due to snow?

This will depend on any policy the nursery has in place and the employees’ express and implied contractual rights, including custom and practice.

For hourly paid employees with no guaranteed hours, it is often the case that unless the employee actually turns up and works in accordance with their contract, there is no contractual right to wages. However, for salaried employees, it may be possible for them to successfully maintain that wages should continue to be paid during unavoidable absence unless the contract of employment states otherwise.

Having a clearly communicated policy is key. Further, alternative options are often set out in such a policy, including allowing employees to take the absence as paid leave, making up the hours on other days or working from another setting.

• To ask Caroline a question, email hannah.crown@markallengroup.com