Childcare Counsel - work emails, terminating employment

Q A manager is currently off sick and we would like to check her work email, as per our staff handbook.

A Email monitoring is restricted by data protection law. Simply relying on the wording in your handbook is not sufficient and additional steps should be taken to specifically notify the employee. In particular, what, how and why the email monitoring will be taking place, who will have access, and that the monitoring is for the specific purpose of ensuring business emails are not missed. It is important to have a written record of the communication.

There are a number of permitted and lawful purposes that the company can rely on – including legitimate interest of the company needing to be in a position to conduct its business.

Q Three weeks ago a staff member advised that he was unable to attend work due to an emergency. We have not heard from him since. Can we terminate his employment?

A The employee will not have gained sufficient service in order to bring an ordinary unfair dismissal claim. Notice of termination or a payment in lieu of notice (if permitted under the contract of employment) should, however, be given to avoid a wrongful dismissal claim.

However, there is a risk with terminating immediately if we don’t know the reason for the absence. If the absence, and therefore any subsequent dismissal, is connected to a reason where there is no service requirement, there will be legal risk. For example, there is no service requirement for a discrimination claim. If the reason for absence is connected to a protected characteristic, such as a disability, the nursery could risk liability for discrimination if it terminates employment without further enquiry.

Further attempts should be made to contact him. He should be given a deadline to respond and warned that if he does not return to work or contact the nursery, it will take a decision regarding employment in his absence.

• Send your questions to hannah.crown@markallengroup.com