Alanna King gets legal guidance this week from Martin Brewer, a Partner with the employment team of Mills & Reeve and Helen Badger, employment law expert at Browne Jacobson on whether to allow an employee to access a nursery web link whilst at work.

The question:
I have been asked by an employee to allow access to a website which would allow her to log in and view her young children during the day at their nursery.

IT have referred it to HR to make a judgement whether it is a valid request. There could potentially be an impact on the capacity of our network but if we consider it a vaild request, it could be trialled in a controlled mannar to review this. However, we would be concerned about setting a precedence as our IT policy state that internet access is for limited personal access only.

The website www.teletoddler.co.uk state that accessing teletoddler should not count as personal use because it is government policy to do as much as possible to help working parents (most private companies also follow this policy).

I would like to know if this is true. Can anyone tell me if you do allow this or would allow it in principle should it be requested?

Alanna King

The answers:
Martin Brewer, is a Partner with the employment team of Mills & Reeve

Alanna, as a rule you should allow employees a reasonable degree of flexibility if you are to avoid falling foul of, in this case, the Sex Discrimination Act 1975.

If you were to impose a policy of not allowing this employee access to this site I can see an argument that this amounts to less favourable treatment of the employee under the indirect discrimination provisions of the Act.

The argument would be that the burden of child care falls on women, that such a policy therefore impacts negatively on such women and their child care arrangements, and that amounts to sex discrimination.

However, having said that I doubt that such an argument would get very far. This web cam is purely to watch the nursery. It does not seem to be interactive. At any one time how could the viewer know that their child was going to be in view and, even if he or she was, what can the parent viewer do? Thus this is not really child care by technological means. It's merely watching through a window as it were.

Therefore the issue may be more about industrial relations than child care/employee flexibility. You already allow 'limited' personal use of the internet, in which case why exempt this site (although see below on this.)

You could allow access but tell the employee you will monitor her access over a period of time to ensure that she does not abuse the facility. You should monitor only the time she is logged on to the site, not the content. You may want to set out some guidance about what you would consider to be 'limited' use in this case.

I do have one issue about this. It may be over-cautious but allowing a web cam into a nursery and allowing the public to access that has all sorts of implications. I assume access is controlled but the nursery won't know who the viewer is allowing to watch the web cam.

Your employee could log into the site, leave the web cam off and leave her desk thus allowing others to access the web cam images. This has obvious implications. You must ensure that you update your policy to cover this. You could, for example, make it a disciplinary offence for others to view the images or for the parent to allow others to view.

I know that this is cautious and that, for example, an employee could bring in photographs of a birthday party showing children of all ages etc. Which generally an employer wouldn't worry about. However, a nursery is different. There will be live pictures, no editing and, crucially you won't know, and can't assume that all of the parents of the nursery children consent to their child being put on public display. So in this case limited private use must mean just that-private.

Martin can be contacted at: martin.brewer@mills-reeve.com

More info from Helen Badger.