The Smell of Bullshit part 4 – maternity rights

Every week it seems like there’s a news report about a company who behaved illegally towards a pregnant employee. Obviously any good company would want to behave legally and fairly, so let’s have a look at what that means for employers and employees.

Again, there’s lots of information available on the web. If you’re not sure that your employer is behaving correctly, check out these sites and make sure of your rights. Hey, I made a poem!

What are the basic things you need to know?

Maternity leave

  • Pregnant employees have the right to 52 weeks maternity leave. A pregnant employee has the right to both 26 weeks of ordinary maternity leave as well as 26 weeks of additional maternity leave. To qualify for maternity leave, an employee must tell their employer by the end of the 15th weeks before the expected week of childbirth that she is pregnant, when the birth is expected (by medical certificate if requested) and the date she intends to start maternity leave. This can normally be any date which is no earlier that the beginning of the 11th week before the expected week of childbirth up to the birth. It is best to advise the employer as soon as possible. However, your maternity leave will start automatically if you’re off work for any reason to do with your pregnancy from the fourth week before your baby is due.
  • The first 26 weeks of maternity leave are called Ordinary Maternity Leave (OML). During OML, you will still get all the same rights under your contract of employment as if you were still at work. The only exception is that you will not get your normal pay unless your contract allows for it. But you will, for example, still be entitled to build up holiday and to get any pay increase. Though you are not entitled to your normal pay, most women employees are entitled to Statutory Maternity Pay or Maternity Allowance.
  • As well as Ordinary Maternity Leave (OML), you can also take an additional 26 weeks’ maternity leave. This is called Additional Maternity Leave (AML). This gives a total of up to 52 weeks’ maternity leave. If you’re taking AML, this must follow on directly after OML and there must be no gap between the two.Your terms and conditions of employment remain the same throughout both OML and AML.
  • You can choose how long you take off work for maternity leave, up to a maximum of 52 weeks. However, the law says that you must take at least two weeks immediately after the baby is born. If you work in a factory, you must take at least four weeks.
  • Once notification has been given to the employer they must then write to the employee, within 28 days of her notification, setting out her return date. The employee must give eight weeks notice if she wishes to change the return date.

Time off for pregnancy matters

  • All pregnant employees are entitled to reasonable time off with pay for antenatal care made on the advice of a registered medical practitioner, which may include relaxation classes and parent-craft classes. Except for the first appointment, employees should show the employer, if requested, an appointment card or other documents showing that an appointment has been made.
  • It’s illegal for employers to refuse to give pregnant employees time off for antenatal care or refuse to pay their normal rate for this time off, but fathers don’t have a legal right to time off to accompany their partners.

Maternity pay

  • Statutory maternity pay (SMP) will be payable if the employee has been employed continuously for at least 26 weeks ending with the 15th week before the expected week of childbirth, and has an average weekly earnings at least equal to the lower earnings limit for National Insurance contributions. SMP is payable for 39 weeks; for the first six weeks it is paid at 90 percent of the average weekly earnings. The following 33 weeks will be paid at the SMP rate or 90 per cent of the average weekly earnings which ever is the lower. The SMP rate from April 2013 is £136.78 per week.
  • Women who do not qualify for Statutory Maternity Pay may be entitled to Maternity Allowance, paid by the Benefits Agency, for up to 39 weeks. To qualify, they must have been employed or self-employed for 26 weeks out of the 66 weeks before the expected week of childbirth.
  • During the maternity leave, the employee is entitled to benefit from all her normal terms and conditions of employment, except for remuneration (monetary wages or salary). She can do up to 10 days’ work during her maternity leave without losing any Statutory Maternity Pay, payment for these days should be agreed. At the end of maternity leave, she has the right to return to her original job, if that is not possible then a similar job on the same terms and conditions should be given. If a redundancy situation arises, she must be offered a suitable alternative vacancy if one is available. If there is no suitable alternative work, she may be entitled to redundancy pay.

Health and safety during pregnancy

  • Employers must take account of health and safety risks to new and expectant mothers when assessing risks in work activity. If the risk cannot be avoided, the employer must take steps to remove the risk or offer suitable alternative work (with no less favourable terms and conditions); if no suitable alternative work is available, the employer must suspend the expectant mother on full pay for as long as necessary to protect her health and safety or that of her baby.
  • Pregnant employees who think they’re at risk but their employer disagrees should talk to their health and safety or trade union representative. If your employer still refuses to do anything, talk to your doctor or contact the Health & Safety Executive.

During your maternity leave

  • When you are on maternity leave, your employer should keep you informed of issues which may affect you. For example, you should be informed of any relevant promotion opportunities or job vacancies that arise during your maternity leave.
  • The amount and type of contact between you and your employer must be reasonable. Contact can be made in any way that best suits either or both of you. For example, it could be by telephone, by email, by letter, by you making a visit to the workplace or in other ways.
  • You are also allowed to work for up to ten days during your maternity leave without it affecting your maternity pay. These are called ‘Keeping in Touch Days’.
  • Both you and your employer must agree about whether you work any Keeping in Touch Days, how many you will work, when you will work them and how much you will be paid for them. You are under no obligation to work them and your employer is under no obligation to offer them to you.
  • You must also agree between you what sort of work you will do. Keeping in Touch Days could be particularly useful in enabling you to attend a conference, undertake a training activity or attend for a team meeting.
  • The rate of pay is a matter for agreement with your employer. It may be set out in your employment contract or agreed on a case-by-case basis. However, you must be paid at least the National Minimum Wage.
  • Some employment rights, such as the right to claim statutory redundancy pay, depend on how long you have worked for your employer. The length of time you have worked for your employer is the length of your ‘continuous employment’. It is important, therefore, to note that time spent on maternity leave counts when calculating how long you have been with your employer.

Returning to work after childbirth

  • At present there is no statutory right to time off for breastfeeding or expressing milk and there is no legislation requiring employers to provide specific facilities where employees can express milk. However, the Health and Safety Executive’s advice is that employers are legally required to provide somewhere for pregnant and breastfeeding employees to rest and express milk. Toilets are not suitable for expressing milk. The employee should provide the employer with a written notification that they are breastfeeding; ideally this should be done before they return to work.
  • In a genuine redundancy situation, and where there is no suitable alternative work available for those on maternity leave, then they can lawfully be made redundant, providing that pregnancy and maternity is not the reason for redundancy, the redundancy is genuine and the employer has followed the correct redundancy procedures and has considered any redeployment.
  • During the protected period (the beginning to the end of the maternity leave) unfavourable treatment of a women because she is pregnant or on maternity leave is unlawful.
  • A woman on maternity leave has the right to return to the same job before she left or if not possible at the end of the 52 weeks maternity leave than a suitable alternative must be found.
  • Selecting a woman for redundancy because of her pregnancy, maternity leave or a related reason is automatically unfair dismissal as well as being unlawful discrimination.
  • Failure to consult a woman on maternity leave about possible redundancy is likely to be unlawful discrimination.
  • A woman made redundant while on maternity leave must be offered any suitable alternative vacancy if there is one available she doesn’t need to apply for it.
  • If you’re not allowed to return to work after your Ordinary Maternity Leave, you may be able to make a claim for unfair dismissal, and make a claim for discrimination because of pregnancy and maternity leave. Both of these claims can be made regardless of how long you have worked for your employer or how many hours a week you work.If you wish to make claim for automatic unfair dismissal and discrimination, you should speak to an experienced adviser, for example, your trade union, CAB or an employment lawyer.
  • If you’re sick when you are due back to work at the end of your Ordinary Maternity Leave (OML), you must get a medical certificate to send to your employer. Your OML will end at the end of the 26th week and you will then go onto sick leave. You will be protected from unfair dismissal for an additional four weeks after your 26 weeks’ OML if you are sick for this period.If an employer tries to dismiss a woman who is sick at the end of her maternity leave and so cannot return to work, this is likely to be discrimination.
  • If you wish to return to work after AML, you should be offered your old job back, unless this is not reasonably practical. If it is not reasonably practical to offer you your old job back, you must be offered a job that is suitable for you and appropriate in the circumstances, on the same terms and conditions as your old job. For example, your pay must be at least the same as your old job.
  • You have no automatic right to return to work part time after maternity leave. However, you may have the right to ask for flexible working and this request must be considered seriously by your employer. If they do not consider it seriously, this could be discrimination.

Again, all of these rights are legal rights which every employer must respect. There is no exemption for companies who don’t want to respect these rights.

The Smell of Bullshit

The above is a link to a post on a site called Chief Customer Officer, and it’s an article extolling how well Lush interact with their customers on their online forum. That’s Lush, the “ethical” toiletries and cosmetics company. The post says

Founder Mark Constantine of LUSH Cosmetics keeps it real with thousands of self-proclaimed “Lushies” on its online forums who chat with Constantine and his staff. Here you see back-and-forth debate and straight talk usually reserved for friends.

Customers often plead the case for products scheduled for extinction. LUSH lets people know ahead of time so they can stock up on their favorites headed for the chopping block. These exchanges set the tone for the honest, passionate, and straightforward relationship the rest of the company is encouraged to build with customers.

Likened in the media to Willy Wonka, Constantine orchestrates a cacophony of wild discovery techniques to find the scents (and textures) that will explode in the bath or soothe the skin, transporting LUSH customers to their quiet reverie. Some would say LUSH has drawn women back into the bath. LUSH has elevated the art of taking baths with the invention of the “bath bomb,” calling it “a giant Alka-Seltzer for your tub.” For the $7–$9 price of a bath bomb, they provide a bit of therapy for the soul. Laugh if you want — LUSH is laughing all the way to the bank. This unique, all-natural company, which hires people to crack open coconuts and peel mangoes to make its products, has created a legion of followers. LUSH Cosmetics has blossomed from one store in 1995 to more than 600 shops worldwide.

Companies become beloved because of how they connect with customers and how they connect in their customers lives.

  • They relate personally with customers.
  • Their personalities come through during interaction with them.

I was a customer of Lush for many years and a regular user of their forum for probably about ten years. When I say regular user, I mean daily. Daily for about ten years. I left the forum about a year ago, and I now only buy a couple of things at Lush – a particular soap and a particular body moisturiser which my prone-to-allergies very eczematous skin can’t do without. The reasons I have stopped using the forum and stopped buying the vast majority of their products are multiple but can be boiled down into two sentences. I don’t believe they give a shit about their customers. I don’t believe they give a shit about their staff.

As for how it treats customers, particularly on the forum, well, it really does vary. Mark Constantine, the founder of Lush, who goes by the name of BIG on the forum, has been incredibly generous to many customers and forum users. He sent me and others products worth a lot of money for doing user testing on a previous incarnation of the forum. He regularly invites forum users to the factory for tours, puts them up in a hotel and pays for dinner. They even made me a raspberry & lime body lotion I had been suggesting for years. These are nice things to do. I enjoyed my factory trip very much and I still appreciate it. And I still use some of the products he sent me, and I will be sad when I use the last of the lotion. But that does not mean that he or Lush is perfect. I have seen Mark Constantine be incredibly rude to a customer/forum user, apologise and send her an entire truckle of soap as an apology, then berate her for ingratitude several years later when she criticised a poor quality product. Other staff using the forum – Jill of the Chester shop, whose username was tittywalls, was outrageously rude on more than one occasion. I’m not talking about the to and fro of banter, discussion and cheek you see on internet fora where people are relaxed and know each other well enough to be informal and tease each other. I’m talking about someone in the role of customer on the forum interacting with someone in the role of Lush employee on the forum, and that employee/employer being very very rude.

The Lush forum used to be a nice internet space to hang out. It was fun to interact with Lush headquarters staff, to give them feedback, to take part in competitions, and all the other fun stuff. The forum was a nice place to hang out generally. I have laughed till I cried at some of the things that went on on there and I have made friends who I hope will be my friends for life. One very memorable event was “the truck of love.” A teenage single mother was offered a tenancy on a flat which she couldn’t afford to furnish. Without her knowing the forum as a whole donated furniture, hired a van and sent the van up the country collecting donations and delivered her a van full of furniture. This was an internet forum – most of these people had never met and never will but they still cared enough to help. Every year the forum would get drunk and watch Eurovision together, online. The hilarity was immense.

But now it’s miserable. Staff don’t go near the place, Mark’s answers to criticisms are rolling eyes smilies or to tell people they’re ungrateful. There is currently good reason to believe that a Lush North America employee has stolen from a customer (via submitting a paypal claim for items she bought from the customer then said she hadn’t received, even though she was selling the same items on ebay) and Lush say it’s nothing to do with them. Lush have always said that the forum is unmoderated and that accounts are not deleted, but the account of the employee who stole from a customer was somehow deleted. Strange, no? Customers/forum users feel unheard and neglected. Valid complaints like those raised on are dismissed as whinging. Mark gets huffy if he isn’t worshipped.

The Lush forum used to be a vibrant place with benefits for customers and staff far beyond the discussion of the products. Now, it’s a sad shadow of what it could be – much like the company’s attitude to employment law.

Mark Constantine has said numerous times on the forum that he can’t see why Lush should have to abide by employment laws because they’re a small family-based company. (They’re a multi-national organisation). When it was pointed out to him that all employers are obliged to abide by employment law, he disagreed. He genuinely seems to believe that he and his company are above the law. Can you believe that a company the size of Lush doesn’t have an HR department?

Even companies which respect their obligations and requirements under the law get it wrong sometimes and make mistakes which are harmful to staff. One can only imagine how a company which believes the law doesn’t apply to it treats its staff. One can only imagine how a company which treats its paying customers so badly treats its staff. One  can only shudder to imagine how a company which says it doesn’t believe employment law applies to it in public treats its staff in private.

It’s Lush policy, apparently, that their shop doors should remain open during opening hours. Fine if you’re in a shop in a shopping mall. Maybe even fine if you’re in a shop on the warmer southwest coast of England – such as Poole, for example. But can you spot any obvious problems with an open door policy for high street shops say in Aberdeen or Edinburgh? That’s right. It gets cold in winter! Quite apart from Lush’s “ethical” stance on the environment and the problems of shop heating rushing straight out of the front door into the January cold, what about the staff in the shop? I have been in Lush shops in Scotland in mid-winter and when the doors are open they get very very cold. And the staff get very very cold. And that is problematic. UK law does not state a minimum working temperature, but the temperature in workrooms should be at least 16C. The Regulations say

The temperature in workrooms should provide reasonable comfort without the need for special clothing. Where such a temperature is impractical because of hot or cold processes, all reasonable steps should be taken to achieve a temperature which is as close as possible to comfortable. ‘Workroom’ means a room where people normally work for more than short periods. The temperature in workrooms should normally be at least 16 degrees Celsius unless much of the work involves severe physical effort in which case the temperature should be at least 13 degrees Celsius. These temperatures may not, however, ensure reasonable comfort, depending on other factors such as air movement and relative humidity

Forum users realised that Lush shop staff were freezing their fragrantly-moisturised tits off, and complained on the forum. The aforementioned queen of customer relations tittywalls retorted that staff would only get cold if they were standing around doing nothing and that if they got on with work they’d warm up. No understanding of the dangers of inhaling cold air and lowering core temperature. No acknowledgement that staff should not be so cold they have to wear hats, scarfs, coats and gloves in a shop. Eventually, after a lot of fuss, Lush told the forum that shops had been instructed they could close their doors if necessary. Forumites checked with local shops. Many local shops said they’d had no such instruction. Forum users continued to complain. Some shops did start shutting their doors in the coldest weathers. Lush continue to insist shops are allowed to shut their doors if the weather requires it. Customers continue to see very cold staff in very cold shops with open doors. I will no longer shop in Lush, for many reasons, but be assured, if I knew a shop was keeping its doors open in an Edinburgh winter and staff were suffering, I would go for a browse with a thermometer in my bag, and if I felt it was necessary, I would notify the Health & Safety Executive. Anybody else could do the same, if they wanted to. Staff could even do it anonymously.

If any Lush staff or their families are friends are reading this and are concerned about how Lush behaves towards employees, you do not have to worry alone. You have the legal right to join a union. USDAW might be the most appropriate, but there are others. General advice on employment law and employment rights is available from the TUC and STUC. The TUC produce a number of leaflets related to workers’ rights and the law is very clear that you have the right to join a union if you want to, and you cannot be dismissed or disadvantaged at your work for doing so. They also have a useful page about your basic rights at work. The TUC and STUC can help you work out which union is the most appropriate for you to join, and you do not have to tell your employer that you have joined if you don’t want to. Of course, it would be to everyone’s benefit if everyone joined, and sometimes you can only do that by going public, but that’s a big step to take if you’re scared of your employer.

Of course, all of this advice applies to anyone who is concerned about how they are treated at work. You have rights, there is support available, and you do not have to put up with it. Join a union today. Don’t be scared to get help. And if you want to leave a comment here with examples of you or someone you know being treated badly by Lush, please do. It helps people to know they’re not alone.