The Smell of Bullshit part 12: union membership

Somebody on the Lush international forum has just said that Lush UK contracts state that union membership is void. I haven’t seen a Lush contract and I have no idea what the exact wording is, or what Lush might mean by that (if their contracts do indeed say something like that). So let’s just go over the law as it applies to trade union membership in the UK. Again, as in previous blog posts, I must point out that Lush is not above the law.

This is what the Government says about trade union membership.

You have the right to:

• choose to join or not join a union
• decide to leave or remain a member of a union
• belong to the union you choose, even if it’s not the one your employer negotiates with on pay, terms and conditions
• belong to more than one union

Your employer isn’t allowed to:

• offer you a benefit to leave a trade union
• threaten to treat you unfairly if you don’t leave a union

An employer or employment agency isn’t allowed to insist that you:

• join or leave a trade union
• leave one union for another

Your employer isn’t allowed to dismiss you or choose you for redundancy because you:

• are or want to be a union member
• aren’t or don’t want to be a union member
• took part or wanted to take part in union activities

Your employer mustn’t treat you unfavourably (for example refusing you promotion or training opportunities) if you:

• join a union
• take part in its meetings
• leave a union

So, no employer can treat you unfavourably because you are a union member. If they do, you might have grounds for a tribunal, and your union would assist you with that.

And let’s have a look at what the law says.

137 Refusal of employment on grounds related to union membership.

(1)It is unlawful to refuse a person employment—
(a)because he is, or is not, a member of a trade union, or
(b)because he is unwilling to accept a requirement—
(i)to take steps to become or cease to be, or to remain or not to become, a member of a trade union, or
(ii)to make payments or suffer deductions in the event of his not being a member of a trade union.
(2)A person who is thus unlawfully refused employment has a right of complaint to an employment tribunal.
(3)Where an advertisement is published which indicates, or might reasonably be understood as indicating—
(a)that employment to which the advertisement relates is open only to a person who is, or is not, a member of a trade union, or
(b)that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to employment to which the advertisement relates,
a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks and is refused employment to which the advertisement relates, shall be conclusively presumed to have been refused employment for that reason.
(4)Where there is an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union, and the trade union puts forward or approves only persons who are members of the union, a person who is not a member of the union and who is refused employment in pursuance of the arrangement or practice shall be taken to have been refused employment because he is not a member of the trade union.
(5)A person shall be taken to be refused employment if he seeks employment of any description with a person and that person—
(a)refuses or deliberately omits to entertain and process his application or enquiry, or
(b)causes him to withdraw or cease to pursue his application or enquiry, or
(c)refuses or deliberately omits to offer him employment of that description, or
(d)makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or
(e)makes him an offer of such employment but withdraws it or causes him not to accept it.
(6)Where a person is offered employment on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused employment for that reason.
…
(8)The provisions of this section apply in relation to an employment agency acting, or purporting to act, on behalf of an employer as in relation to an employer.

Refusal of service of employment agency on grounds related to union membership.

(1)It is unlawful for an employment agency to refuse a person any of its services—
(a)because he is, or is not, a member of a trade union, or
(b)because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.
(2)A person who is thus unlawfully refused any service of an employment agency has a right of complaint to an employment tribunal.
(3)Where an advertisement is published which indicates, or might reasonably be understood as indicating—
(a)that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or
(b)that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to a service to which the advertisement relates,
a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.
(4)A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—
(a)refuses or deliberately omits to make the service available to him, or
(b)causes him not to avail himself of the service or to cease to avail himself of it, or
(c)does not provide the same service, on the same terms, as is provided to others.
(5)Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.

145AInducements relating to union membership or activities

(1)A worker has the right not to have an offer made to him by his employer for the sole or main purpose of inducing the worker—
(a)not to be or seek to become a member of an independent trade union,
(b)not to take part, at an appropriate time, in the activities of an independent trade union,
(c)not to make use, at an appropriate time, of trade union services, or
(d)to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.
(2)In subsection (1) “an appropriate time” means—
(a)a time outside the worker’s working hours, or
(b)a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services.
(3)In subsection (2) “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work.
(4)In subsections (1) and (2)—
(a)“trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and
(b)references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.
(5)A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section.
145BInducements relating to collective bargaining(1)A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if—
(a)acceptance of the offer, together with other workers’ acceptance of offers which the employer also makes to them, would have the prohibited result, and
(b)the employer’s sole or main purpose in making the offers is to achieve that result.
(2)The prohibited result is that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.
(3)It is immaterial for the purposes of subsection (1) whether the offers are made to the workers simultaneously.
(4)Having terms of employment determined by collective agreement shall not be regarded for the purposes of section 145A (or section 146 or 152) as making use of a trade union service.
(5)A worker or former worker may present a complaint to an employment tribunal on the ground that his employer has made him an offer in contravention of this section.

(1)worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—
(a)preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,
(b)preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, F15…
[F16(ba)preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or]
F16(c)compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.
(2)In subsection [F17(1)]F17“an appropriate time” means—
(a)a time outside the [F18worker’s]F18 working hours, or
(b)a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union [F19or (as the case may be) make use of trade union services]F19;
and for this purpose “working hours”, in relation to [F20a worker]F20, means any time when, in accordance with his contract of employment [F21(or other contract personally to do work or perform services)]F21, he is required to be at work.
[F22(2A)In this section—
(a)“trade union services” means services made available to the worker by an independent trade union by virtue of his membership of the union, and
(b)references to a worker’s “making use” of trade union services include his consenting to the raising of a matter on his behalf by an independent trade union of which he is a member.
(2B)If an independent trade union of which a worker is a member raises a matter on his behalf (with or without his consent), penalising the worker for that is to be treated as penalising him as mentioned in subsection (1)(ba).
(2C)A worker also has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place because of the worker’s failure to accept an offer made in contravention of section 145A or 145B.
(2D)For the purposes of subsection (2C), not conferring a benefit that, if the offer had been accepted by the worker, would have been conferred on him under the resulting agreement shall be taken to be subjecting him to a detriment as an individual (and to be a deliberate failure to act).]
F22(3)[F12A worker]F12 also has the right not to [F23be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place] for [F14the sole or main purpose]F14 of enforcing a requirement (whether or not imposed by [F24a contract of employment]F24 or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.
(4)For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to [F20a worker]F20 in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as [F25a detriment to which he has been subjected as an individual by an act of his employer taking place] for [F14the sole or main purpose]F14 of enforcing a requirement of a kind mentioned in that subsection.
(5)[F26A worker or former worker]F26 may present a complaint to an industrial tribunal on the ground that [F27he has been subjected to a detriment]by his employer in contravention of this section.
[F28(5A)This section does not apply where—
(a)the worker is an employee; and
(b)the detriment in question amounts to dismissal.]

Some of that looks quite complicated but in a nutshell, no employer can treat a worker unfavourably because they are in a union. No employer can try to compel a worker to leave or to not join a union. No employer can treat a worker unfavourably or punish them for seeking advice or assistance from a union on a matter for which it is reasonable to seek union advice. You cannot be disciplined for being in a union. You cannot be refused work for being in a union. You cannot be sacked for being in a union, and you cannot be selected for redundancy because you are in a union. If any employer tries any of those things on with you because you are in a union, get help from your union. If any employer tries any of those things on with you because you are thinking about joining a union, join the union and get their help.

Click this link to find out which union is right for you. And here is a list of unions. If you work for Lush, USDAW is probably the relevant union for you to join. You can join online right now!

So, those are your individual rights. But the power of unions comes from strength in numbers. It’s much easier to treat one person badly when that one person is scared to stand up for their rights. It’s much harder to treat 500 people badly when those 500 people aren’t prepared to put up for it. If you haven’t seen the film Made in Dagenham, you really should.

Since 2000, new legislation came into force about how employers must recognise unions for collective bargaining. What does the law say?

The statutory procedure may only be used in respect of employers with at least 21 employees. In making an application to the Central Arbitration Committee, the union must show that it has at least 10% membership within the proposed bargaining unit and that a majority of workers in the proposed bargaining unit are likely to favour recognition. Joint applications by two or more unions are permissible if they show that the unions will cooperate effectively and, if the employer wishes, conduct single-table bargaining.

 

Lush has at least 21 employees. What else?

Disagreements between employers and unions on scope of the proposed bargaining unit will be determined by the CAC, taking account of a range of factors and subject to the overriding need for it to be “compatible with effective management”.

The CAC will then decide whether a ballot is needed. If the CAC is satisfied that a majority of the workers in the bargaining unit belong to the union making the application, it will issue a declaration of recognition without a ballot unless it considers holding a ballot would be “in the interests of good industrial relations” or if there are doubts whether a significant number of union members want the union to bargain on their behalf. Where there is less than 50% membership in the bargaining unit, the CAC is required to order a secret ballot, to be conducted by a qualified independent person.

If a majority of the workers voting and at least 40% of those eligible to vote support the union in a ballot, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

Bargaining units aren’t always straightforward. For a big employer like a city council, there might be several bargaining units – one for the social work department, one for education, one for the housing department etc. For one independent shop, which only has one outlet, that would be one bargaining unit. For an organisation like Lush, manufacturing might be one bargaining unit, retail might be another, etc. If Lush and the union couldn’t agree on how to set up the bargaining units, the CAC would decide. Now here comes the good bit.

If the CAC is satisfied that a majority of the workers in the bargaining unit belong to the union making the application, it will issue a declaration of recognition without a ballot unless it considers holding a ballot would be “in the interests of good industrial relations” or if there are doubts whether a significant number of union members want the union to bargain on their behalf. Where there is less than 50% membership in the bargaining unit, the CAC is required to order a secret ballot, to be conducted by a qualified independent person.

If a majority of the workers voting and at least 40% of those eligible to vote support the union in a ballot, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

This means that if a majority of the people in the bargaining unit are members of the union, the employer must recognise the union. Majority doesn’t have to mean 3/4 or 2/3 – it means 50% + 1. On the other hand, if less than half of the workers in that bargaining unit are members of the union, at least 40% of them must vote for the union to be recognised, and if they do, the employer must recognise the union. If a bargaining unit was “the Lush factory” and it had 200 employees, and 101 of those employees were in a union, Lush would be obliged to recognise that union. If only 99 of those employees were in a union, but 39.6 (let’s call it 40) of them voted for union recognition, Lush would be obliged to recognise the union for collective bargaining. Lush would not have the option to not recognise the union, they would be legally required to do so.

There’s lots of information here about recognition procedures, but don’t worry too much about that for now. When things get to that stage, the union will help. There’s info here about the types of recognition, but again, unions will help. Most unions are used to dealing with intransigent employers.

Remember, even if you work for an employer, such as Lush, which does not recognise trade unions, if you are a member of a union, you have a legal right to be accompanied by a union steward to any disciplinary or grievance hearing.

And remember, you cannot be disciplined, punished, threatened or treated unfavourably for joining a union, for encouraging or assisting others to join, or for seeking recognition for your union.

So, what should you do now? You should join the most apppropriate union for your employer/workplace. You should encourage everyone else to join as well. You should contact your union for assistance if you get any hassle for any of that. And you should think about why any employer would want you not to have the support and protection a union provides.

 

 

 

The Smell of Bullshit, part 11: the stupid black pots

People who shop in Lush will know that many of their products come in black pots with screw-on lids. For the purposes of this blog post, whenever I refer to the “black pots” I am referring specifically to the black pots with the screw-on lids, in any or all of their sizes. The black pots come in small, medium and large versions, which are more or less the same, just differently sized. The problems I am blogging about in this post apply to all the sizes.

The lids are screw-on, so there has to be a groove in the lid which the top edge of the pot fits into. As the majority of products in the black pots are creams, mousses, masks etc of varying consistencies from very liquid to very thick like whipped cream, they tend to slop about a bit. And the contents get into the groove (ah, the days when Madonna was fun!) and get stuck there. As you can see.

Product gets stuck in the groove and congeals and goes quite horrible really. Also, it gets wasted. It’s sitting there, in the groove of the lid, where the customer can’t reach it and therefore can’t use it. Waste of product, waste of money.

Obviously Lush makes toiletries, which are used in bathrooms, where people often have wet hands. Sometimes wet hands slip and drop what they’re holding. Unless you’ve done it yourself, you can only imagine the pain and irritation you experience when an open pot of Lush product slips out of your wet hand and lands in the sink, in the bath, on the floor and spills its contents across the room. Then you’re left with a dilemma – do you scoop it back into the pot, contaminating it with the grebbies and eech of whatever it landed on? Do you just scoop it up and bin it or rinse it down the plughole, wasting product and money? Or do you scoop it up and apply as much of it to yourself as you can?

And, to expand on the theme of grebbies and eech (a phrase I borrow from my friend Morna who originally used it to refer to the things that inhabit a dirty plughole and which need to be cleaned out with a chopstick), to use the products in the black pots, you have to stick your fingers into them. Lush make much of their minimal use of preservatives. It’s pretty well understood that solid products are more stable than liquid products and therefore require fewer preservatives. Credit where it’s due, Lush have been reasonably innovative over the years in making solid products (eg shampoos, conditioners, massage bars, bubble bars) where other companies make liquids, which require fewer preservatives and less packaging. But they do still make a lot of liquidy creamy products, which need to be scooped out of the pot in order to use them, and that generally means sticking your fingers into them. I suppose you could use some sort of applicator, thoroughly washed between uses, but how many of us can be arsed with that?

So people stick their fingers into the pots, and even if their hands have just been washed, bacteria gets into the products. And then the products get stuck in the grooves in the lid, where they go a bit congealed and sticky. And then you stick your fingers back in and then you rub the product on your face. And then people wonder why the products are going off.

Unsuprisingly, people have been complaining about the black pots for several years, Shall we have a look at what people have said?

2008

• I do like the tubs as you can see exactly what you have left and how much to get,but on the other hand bottles are more hygienic,and you can still just pump a tiny bit out
• I just opened my fair trade foot lotion and it had wierd [sic] dark pink/yellow bits on the top (unfortunately all the words rubbed off the date sticker so I don’t know if it has gone out of date). i dont know what it was but I scooped it out with a spoon and used the nice stuff underneath.

2010

• This occurred to me today when I slopped half a pot of Enzymion down the sink trying to open it. Those big flat black pots are nice but for “thin” moisturisers like Enzymion they’re awkward to open (hard to hold) and when you do, there’s a good chance the pot will tip and chuck the cream all over the floor. Don’t get me wrong, I love the pots in general, but only for thick products like the face masks – back when my skin was dry instead of oily I had this exact same problem with Skin Drink! Basically I’m asking – is there any chance of Lush offering moisturisers in those pump bottles? They do the in-store samples in those bottles, and they hold the same amount of product (45g). Obviously only for the watery ones, but it would be a big help. It would also make them a lot easier to take on holiday!

2012

• I must add that the pots drive me nuts. I love creme anglais and it is expensive however in that pot, it does not look it. I know generally it is what is inside what counts but if I wanted to give it as a gift, it looks awful and may never be used. I have these things leak on me all the time.

2013

• Moisturisers in pots that don’t leave half of the product in the rim of the lid. Having to keep my products upright all the time makes it difficult to travel with them.
• The product, if it’s a thinner cream, gets trapped in the hollowed out section of the lid, so that when you thread the lid back onto the tub, several full applications are squeezed out of the tub. As fun as it is contaminating it by scooping it up with ones finger and putting it back into the tub / wasting it off / using a clean cotton bud to clean out the inner of the lid every single application / spending 20-30 minutes carefully decanting into a 45g pump bottle, I’m growing really fed up and bored to the point it’s making me consider using alternative moisturisers.    My new tub of Enzymion has taken a considerable hit with the amount of product I’m having to just rub into my hands that has ended up outside of the tub (I decided to try not doing any of the above in favor of seeing how long the tub lasts me as a mini-experiment).
• My Celestial does that as well and it’s really bloody annoying.  Honestly I think all of the packaging needs to be looked at and sorted out because it is clearly not working.
• I just can’t think how these tubs will work if the products have no preservatives, I mean so many of them go off early anyway…
• The point is that you shouldn’t have to use an applicator for face cream. I always apply mine with clean hands and yet all my Lush ones went off. And don’t get me started about product inconsistency. That’s why I eventually had to give up with Lush face care. At first it made my skin better but due to inconsistency, my skin just got a whole lot worse
• I have to admit I got so fed up of leaking and messy moisturiser tubs and continual acne that I switched to another brand (aromatherapy associates) and am 100 times more satisfied. clean prescise application, no mess, no contamination and no more acne…
• Yes I always had this problem too. If I ever sold a moisturiser (or anything in those black tubs really) in the swap shop I felt like I had to wipe a whole load of product away from the grooves of the lid before it looked presentable, and I always kept my tubs upright. It just always seemed as if loads of air was getting in there and pushing the product out
• I’m in agreement, they are not good enough for a product that could contain £40 worth of skincare, I understand the lack of fancy packaging but they need to be fit for purpose.
• I think you have a good point here, I would much prefer them in pump bottles for ease of use and no contamination with fingers and bacteria
• I was told years ago they won’t use pump bottles because of the extra packaging and recycling of the pump unit. They clearly know it’s a problem as the testers have often been in pump bottles.Why?
  They don’t want contaminated products (fine at home though!)
  They don’t want people to tip it everywhere (fine at home though!)
  They don’t want people to use too much (fine at home though!)
  They don’t want things leaking (fine at home though!)

  Pah!

• i think subconsciously this is why i have been moving away from lush skincare. i used to be a ‘lush snob’. everything was lush…cleansers, toners, moisturizer…in fact the only one skincare product i still buy and use and love is ocean salt. i don’t use the toners because 8/10 times, the sprayers on my bottles stopped working and it was just too much trouble to switch to a different bottle – well, not trouble.. but we shouldn’t have to. i used up the last of my lush moisturizer a few months ago, and have made no effort to buy more. i’ve been trying a few different things (non lush) i’ve had samples of and my skin is better for it.    and god forbid you don’t clean the pot right away, the stuff stuck in the grooves turns a crusty grody brown. right next to the product you’re supposed to be putting on your face…it’s very unappealing.    i’ve found a skincare line that my skin loves, and the packaging is functional and inoffensive. sorry lush.
• This happened to my last pot of Vanishing Cream. Will not repurchase.
• I haven’t bought lush face moisturisers for a while but I do remember my vanishing cream having this problem even though it was kept upright, the enzymion just got a weird clear/yellow layer around the grooves that I guess was old moisturiser. Since then I’ve used different companies for face moisturisers in tubes and in pots and not had any of the same problems. Even all the steamcream pots I’ve had didn’t do it and I think that’s thinner than the enzymion I had.     There have been a couple of pots of dreamcream I’ve had that had the same problem though it’s thicker, don’t know if anyone else has with the bigger pots?
• That is exactly how my last pot of Imperialis arrived brand new from Mail Order. It was disgusting so I binned it and switched to Elemis.  If it is made and packaged like that I don’t want it anywhere near my face so didn’t even bother sending it back.
• I had so much of an issue with my lush products in black tubs getting wedged into the rims (I couldn’t even open my ocean salt some days as a result of it) that I have stepped away from the skincare completely. I use a lot of clarins, origins and nivea and my skin is so much better as a result. My acne is almost completely gone and my oily skin is under control.

It seems pretty clear that people are switching to other brands because of what the black pots do to the products. People have complained about the black pots for at least the last five years. Any ideas why Lush aren’t doing anything about a problem that is obviously losing them customers?

The Smell of Bullshit, part 10: fresh products

Lush make much of the “freshness” of their products. These are their official guidelines for how long stock should remain on the shelves of the shops.

Fresh face masks and Hair Doctor – 1 week on the shelf, use within 4 weeks from manufacturing date (keep in the fridge)

Roll cleansers – 1 month on the shelf, use within 3 months from manufacturing date

Liquid perfumes – 23 months on the shelf, use within 31 months from manufacturing date

Solid shampoo bars – 23 months on the shelf, use within 31 months from manufacturing date

Dusting powders – 23 months on the shelf, use within 31 months from manufacturing date

Everything else – 4 months on the shelf, use within 14 months since manufacturing date

These are the current guidelines we have (and the stores should adhere to).

Fresh?

The Smell of Bullshit part 5 – competition prizes and limited edition goods vs Consumer Protection Regulations

One of the things that Lush have used their forum for is competitions for the forumites. I think they also run them on their facebook page too, although I don’t pay much attention to them on facebook. Some of the competitions have been enjoyable – I’ve won prizes myself – and I know many forum users have had a lot of fun out of them. Some of them have involved quite a lot of creativity and they’ve given the users the chance to show their talents. And some of the prizes have been very generous indeed.

But there have been complaints over the past couple of years that not every prize winner has received their prize. Comments and complaints about it have been on the forum for months and years, out there in the public domain where you can see for yourself, because some competitions have gone for months and years without even being judged. That seems a bit mean, I hear you thinking, possibly even unfair. Possibly even unlawful.

The Trade Descriptions Act 1968 has a bit to say about competitions without prizes, supported by and expanded upon by the Consumer Protection from Unfair Trading Regulations 2008. The TDA is similar to our civil consumer rights, but takes things a step further by making it a criminal offence for a company to describe goods or services falsely. The 2008 regulations automatically outlaw 31 unfair practices, such as saying you belong to a trade association when you don’t, pretending to be a customer (see the ban for firms posing as happy customers online MSE News story) and competitions with no prizes. The Consumer Protection regulations say

Commercial practices which are in all circumstances considered unfair…

31.  Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either—
(a)there is no prize or other equivalent benefit, or
(b)taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.

Wouldn’t you agree that a competition in which winners have not received their prize over a year later is a “competition” in which the company has created a false impression that the consumer has won or will win a prize? If I was one of those forum users waiting for a prize for that long, or one of those forum users waiting for a competition to be judged for over a year, I think I’d be contacting Trading Standards. There’s lots of info on the web about how to do it. But then, the most recent comment on this post suggest that Lush have so little respect for their customers, particularly the forum users, that they don’t care about treating them so badly. They’re just fat crazy weirdos.

One of the other things that customers of any company should be aware of is their rights regarding limited edition goods. The Consumer Protection from Unfair Trading Regulation 2008 state

Commercial practices which are in all circumstances considered unfair…

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

Lush made a product called Hairdresser’s Husband (wanky name, I know) which they made available to the first Gallery visitors in London telling them they would only ever be able to buy it there. But since then it has mysteriously appeared in several places – the Covent Garden shop, shop launches and other special events. Now, of course, it might well be that Lush only ever intended Hairdresser’s Husband to be available at the Gallery and they decided to make it available elsewhere later because word got round and other people clamoured for it. That is possible. But then there were their very expensive haircare products which were launched on the forum with the unambiguous statement that they were “special products, never to be sold in shops.” And then they “launched” them again at Lushfest and then put them into the shops at significantly lower prices than those at which they had been sold on the forum. I think that might be a breach of clause 7 as noted above. Lush know fine well that the forum users like to have access to special products and that some people will pay a lot of money for them, paying well over the odds on ebay/forum swaps if they’re no longer available from the company. And they told the forum these items would never be available in the shops, sold a lot of them for a lot of money, then put them in the shops at a lower price. That looks a lot like sharp practice to me.

If any of the forumites who have been waiting for a competition to be judged for months, or waiting to receive a prize they were promised months ago would like to share their feelings about that here, or tell us how they feel knowing that Lush might be behaving unlawfully, they’re very welcome to. Similarly, I’d like to know how the people who paid inflated prices for hair products thinking it was their only chance to get them felt on seeing them in the shops for less, and how they feel now knowing that might well be unlawful. The comments are open – comment away.

The Smell of Bullshit part 3 – time to talk health and safety

One of the nice things about WordPress is that as the blog controller, I can see how many views each post gets, and which links on the blog people are clicking on. The two previous Lush-related posts have had (combined) 1200 views, and I can see that people are clicking on the links I put up to the TUC site and advice re employment law. I really hope Lush employees (and employees of any other company) are able to see that they don’t have to put up with being treated badly, that they do have legal rights, and that they can get help to stand up for their rights. And of course Lush can’t have any objection to staff finding out their legal rights because – well, because we’re talking about their legal rights.

Seeing as there seems to be some interest in the employment law links, I thought it might be helpful to expand on some of it. Some of the comments on the previous posts have talked about the way pregnant employees are treated, and someone has told me privately that some Lush staff contracted Lyme disease at Lushfest last year. (This is the NHS page about Lyme disease). It never does any harm to refresh our understanding of health and safety law.

The Health and Safety at Work Act 1974 (HSWA) is the overarching piece of H&S law in the UK today. All other H&S law stems from this. There are other pieces of legislation which cover specific aspects of H&S at work, such as Acts relating to manual handling and lifting, ut HSWA 1974 is the starting point. So, let’s have a look at it.

The Health & Safety Executive (HSE) website has some useful tips for employers about how to comply with the HSWA. They’re probably useful tips for employees too, if employees are worried that their employer is not doing what it is legally required to do.

The HSE say

As an employer, you must appoint someone competent to help you meet your health and safety duties. A competent person is someone with the necessary skills, knowledge and experience to manage health and safety.

You could appoint (one or a combination of):

• yourself;
• one or more of your workers;
• someone from outside your business.

You probably manage most aspects of your business yourself, or with the help of your staff. But if you are not confident of your ability to manage all health and safety in-house, you may need some external help or advice.

Deciding what help you need is very important. Unless you are clear about what you want, you probably won’t get the help you need.

But how do you get competent advice? We’re not born knowing what to do and how to do it. We don’t suddenly become H&S experts when we’re employed in a post. So how do employers make sure the people they ask to deal with H&S have the necessary skills, knowledge and experience? Luckily, the HSE has some suggestions.

As an employer, you must appoint someone competent to help you meet your health and safety duties. A competent person is someone with the necessary skills, knowledge and experience to manage health and safety.

You could appoint (one or a combination of):

• yourself
• one or more of your workers
• someone from outside your business

You probably manage most aspects of your business yourself, or with help from your staff. But if you are not confident of your ability to manage all health and safety in-house, you may need some external help or advice.

There are a number of different sources of advice. These include:

• trade associations
• safety groups
• trade unions
• consultants registered on the Occupational Safety and Health Consultants Register (OSHCR)
• local councils
• health and safety training providers
• health and safety equipment suppliers

Deciding what help you need is very important. Unless you are clear about what you want, you probably won’t get the help you need.

Things to consider when using external help

• Make sure you clearly explain what you need and check that they understand you. Ask them to explain what they understand the work to be and what they will do, when they will do it and what they will charge you.
• Check for evidence of relevant training/knowledge, such as formal qualifications or practical experience of providing advice in your industry/area of work. Can they explain why they are competent to advise you on your particular problem? Are they a member of OSHCR?
• Shop around to find the right help at the right price. If you were buying equipment or another service for your business, you wouldn’t always accept the first offer, so do the same with health and safety advice.
• Check that the person you choose is adequately insured.
• Consider whether you have received the help you needed. Do you have a practical, sensible solution to your problem? Or have you ended up with something completely ‘over the top’ or a mountain of useless paperwork? If you are not happy with the solution, ask for an explanation and whether there may be a simpler alternative.

Try to make sure that you get a good follow-up service and are able to get further advice on any issues that arise from implementing their recommendations.

The OSHCR provides an up-to-date list of general health and safety advisers who have a qualification recognised by the professional bodies participating in the scheme. If you require general external health and safety advice, you can search the register for a consultant by industry, topic, county or keyword(s).

HSE and a network of professional bodies and stakeholders have been working in partnership to develop this register. Together, this partnership has agreed that a minimum standard should be set for consultants to join the register. This will reassure employers that those consultants on the register have been assessed and meet the minimum standard set by the professional bodies they belong to.

This minimum standard has been set at a degree level qualification, at least two years’ experience and active engagement in a continuing professional development scheme. All consultants who join the register are bound by their professional body/ bodies code of conduct and are committed to providing sensible and proportionate advice.

Not sure if you need specialist H&S advice? Here’s a leaflet to help you decide.

Right, so, you’ve got your competent, trained H&S person with the necessary skills, knowledge and experience. What  are they going to do? They are going to write the H&S policy. A written health and safety policy is a legal requirement for any employer who has over five employees. The policy should describe how the employer will manage health and safety in the workplace. It should say who does what, when they do it and how they do it. Again, the HSE have provided lots of help with this.

Health and safety is about managing risk. That might be risk to employees or it might be risk to customers of the employer or users of the employer’s service. The whole point of health and safety is about recognising that risks exist at work and trying to reduce them so that people are not killed or injured as a result of the employer’s actions or lack of action. Risk assessment is extremely important. In order to do a risk assessment, you have to think about what goes on in the business that might cause harm to people, how likely it is that harm will be caused, how severe that harm might be, and whether you are doing enough to prevent harm. Once you have identified the risks, you should decide how to control them and then ensure those steps are taken. Again, the HSE has some useful advice.

How do I assess the risks in my workplace?

A good starting point is to walk around your workplace and look for any hazards – a hazard is anything that may cause harm.

Then think about the risks – a risk is the chance, high or low, of somebody being harmed by the hazard, and how serious the harm could be.

Think about how accidents could happen and who might be harmed. Ask your employees what they think the hazards are, as they may notice things that are not obvious to you and may have some good ideas on how to control the risks. Concentrate on the real risks – those that are most likely to cause harm.

Consider the measures you are already taking to control the risks and ask if there is anything you should do to make your workplace safer.

Once you have identified the risks and what you need to do to control them, you should put the appropriate measures in place.

Then record your findings. If you have fewer than five employees you don’t have to write anything down but it is good practice to keep a record.

One of the most important factors to consider is

Few workplaces stay the same and sooner or later you will bring in new equipment, substances or procedures that could lead to new hazards. It makes sense to review your risk assessment on a regular basis. If anything significant changes, check your risk assessment and update it.

And look!

Don’t forget to consider everyone who could be harmed

• Some workers may have particular requirements, for example new and young workers, new or expectant mothers, and people with disabilities.  
• Think about homeworkers , and people who might not be in the workplace all the time, such as visitors, contractors and maintenance workers.
• Take members of the public into account, if they could be hurt by your work activities.
• If you share a workplace with another business, you will need to consider how your work affects others and how their work affects you and your staff. Talk to each other and work together to make sure controls are in place.

Specific risks

• For some risks there are particular control measures that are required by law. The HSE website homepage has information on topics and industries to help you decide what you need to do about many common types of risk.
• A few examples of activities that carry a recognised risk of harm are working at height, working with chemicals, machinery, gas, electricity and asbestos. Depending on the type of work you do, there may be other risks that are relevant to your business.
• If you carry out a high-risk activity, check whether you need to obtain a licence or notify someone before you start work. See our website for further information and all the necessary notification forms.

Lots of things there for Lush to think about – pregnant women, homeworkers, working with chemicals. I can only assume the pregnant employees who were not allowed to sit at work had not had an up to date risk assessment done. Risk assessments also have to be done if you’re doing something which is not your day to day business – eg Lushfest. Nobody should be expected to work in a tent in a field in a restrictive uncomfortable costume under a heavy lighting rig in a thunderstorm. Risk assessments should have been done on every single aspect of Lushfest, and that includes assessing the risks of the non-human variables, like the weather or the risk of bites from ticks in an area where ticks are known to live. If Lush do Lushfest again, I hope the staff will have the courage to demand to see the risk assessments. Because of course they will have been done. Won’t they?

Those of you who want more information about risk assessement could have a look at the Management of Health & Safety at Work Regulations 1999. These regulations are more explicit than the HSWA, making it much more clear what is expected of employers and employees. Let’s have a look at what the regulations say (I’ll be deleting the bits relating to self-employment as I really want to focus on employers and employees today).

Risk assessment

3.—(1) Every employer shall make a suitable and sufficient assessment of—

(a)the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b)the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.
(3) Any assessment such as is referred to in paragraph (1) or (2) shall be reviewed by the employer or self-employed person who made it if—

(a)there is reason to suspect that it is no longer valid; or

(b)there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them.

(4) An employer shall not employ a young person unless he has, in relation to risks to the health and safety of young persons, made or reviewed an assessment in accordance with paragraphs (1) and (5).

(5) In making or reviewing the assessment, an employer who employs or is to employ a young person shall take particular account of—

(a)the inexperience, lack of awareness of risks and immaturity of young persons;

(b)the fitting-out and layout of the workplace and the workstation;

(c)the nature, degree and duration of exposure to physical, biological and chemical agents;

(d)the form, range, and use of work equipment and the way in which it is handled;

(e)the organisation of processes and activities;

(f)the extent of the health and safety training provided or to be provided to young persons; and

(g)risks from agents, processes and work listed in the Annex to Council Directive 94/33/EC(1) on the protection of young people at work.

(6) Where the employer employs five or more employees, he shall record—

(a)the significant findings of the assessment; and

(b)any group of his employees identified by it as being especially at risk.

So that’s more information about the need to complete risk assessments, to pay special attention to the health and safety of young people, and the need to record the risk assessment. What else?

Health and safety assistance7.—(1) Every employer shall, subject to paragraphs (6) and (7), appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.
(2) Where an employer appoints persons in accordance with paragraph (1), he shall make arrangements for ensuring adequate co-operation between them.
(3) The employer shall ensure that the number of persons appointed under paragraph (1), the time available for them to fulfil their functions and the means at their disposal are adequate having regard to the size of his undertaking, the risks to which his employees are exposed and the distribution of those risks throughout the undertaking.
(4) The employer shall ensure that—
(a)any person appointed by him in accordance with paragraph (1) who is not in his employment—
(i)is informed of the factors known by him to affect, or suspected by him of affecting, the health and safety of any other person who may be affected by the conduct of his undertaking, and
(ii)has access to the information referred to in regulation 10; and
(b)any person appointed by him in accordance with paragraph (1) is given such information about any person working in his undertaking who is—
(i)employed by him under a fixed-term contract of employment, or
(ii)employed in an employment business,
as is necessary to enable that person properly to carry out the function specified in that paragraph.
(5) A person shall be regarded as competent for the purposes of paragraphs (1) and (8) where he has sufficient training and experience or knowledge and other qualities to enable him properly to assist in undertaking the measures referred to in paragraph (1).

(7) Paragraph (1) shall not apply to individuals who are employers and who are together carrying on business in partnership where at least one of the individuals concerned has sufficient training and experience or knowledge and other qualities—
(a)properly to undertake the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions; and
(b)properly to assist his fellow partners in undertaking the measures they need to take to comply with the requirements and prohibitions imposed upon them by or under the relevant statutory provisions.
(8) Where there is a competent person in the employer’s employment, that person shall be appointed for the purposes of paragraph (1) in preference to a competent person not in his employment.

OK. so, again, the law is pretty clear that every employer must have competent people appointed to oversee health and safety in the business. And remember, in a business like Lush, there are lots of workplaces. We’re talking factories, offices, shops, delivery lorries, home workers and possibly others I haven’t thought of. None of them are excepted.

Employers have an obligation to give employees information about the risks they face at work, and how to keep themselves safe.

Information for employees10.—(1) Every employer shall provide his employees with comprehensible and relevant information on—
(a)the risks to their health and safety identified by the assessment;
(b)the preventive and protective measures;
(c)the procedures referred to in regulation 8(1)(a) and the measures referred to in regulation 4(2)(a) of the Fire Precautions (Workplace) Regulations 1997;
(d)the identity of those persons nominated by him in accordance with regulation 8(1)(b) and regulation 4(2)(b) of the Fire Precautions (Workplace) Regulations 1997; and
(e)the risks notified to him in accordance with regulation 11(1)(c).
(2) Every employer shall, before employing a child, provide a parent of the child with comprehensible and relevant information on—
(a)the risks to his health and safety identified by the assessment;
(b)the preventive and protective measures; and
(c)the risks notified to him in accordance with regulation 11(1)(c).
(3) The reference in paragraph (2) to a parent of the child includes—
(a)in England and Wales, a person who has parental responsibility, within the meaning of section 3 of the Children Act 1989(1), for him; and
(b)in Scotland, a person who has parental rights, within the meaning of section 8 of the Law Reform (Parent and Child) (Scotland) Act 1986(2) for him.

Has every single Lush employee been given a copy of the relevant information? Or do they know where to get it from?

The law has quite a bit to say about training too.

Capabilities and training13.—(1) Every employer shall, in entrusting tasks to his employees, take into account their capabilities as regards health and safety.
(2) Every employer shall ensure that his employees are provided with adequate health and safety training—
(a)on their being recruited into the employer’s undertaking; and
(b)on their being exposed to new or increased risks because of—
(i)their being transferred or given a change of responsibilities within the employer’s undertaking,
(ii)the introduction of new work equipment into or a change respecting work equipment already in use within the employer’s undertaking,
(iii)the introduction of new technology into the employer’s undertaking, or
(iv)the introduction of a new system of work into or a change respecting a system of work already in use within the employer’s undertaking.
(3) The training referred to in paragraph (2) shall—
(a)be repeated periodically where appropriate;
(b)be adapted to take account of any new or changed risks to the health and safety of the employees concerned; and
(c)take place during working hours.

Remember, people, H&S isn’t all down to the employer. Employees have duties and responsibilities too. The law says

Employees’ duties

14.—(1) Every employee shall use any machinery, equipment, dangerous substance, transport equipment, means of production or safety device provided to him by his employer in accordance both with any training in the use of the equipment concerned which has been received by him and the instructions respecting that use which have been provided to him by the said employer in compliance with the requirements and prohibitions imposed upon that employer by or under the relevant statutory provisions.

(2) Every employee shall inform his employer or any other employee of that employer with specific responsibility for the health and safety of his fellow employees—

(a)of any work situation which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a serious and immediate danger to health and safety; and

(b)of any matter which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a shortcoming in the employer’s protection arrangements for health and safety,

in so far as that situation or matter either affects the health and safety of that first mentioned employee or arises out of or in connection with his own activities at work, and has not previously been reported to his employer or to any other employee of that employer in accordance with this paragraph.

So, if you’ve been trained in how to do something, you must do it the way you’ve been trained to do it. If you are aware of anything which could cause a hazard, such as lack of training, lack of safety equipment, a health problem or any other risk, you must inform your employer and your employer must take that into account.

Temporary workers aren’t excluded. They have the same rights to a safe workplace as anyone else.

Temporary workers

15.—(1) Every employer shall provide any person whom he has employed under a fixed-term contract of employment with comprehensible information on—

(a)any special occupational qualifications or skills required to be held by that employee if he is to carry out his work safely; and

(b)any health surveillance required to be provided to that employee by or under any of the relevant statutory provisions,

and shall provide the said information before the employee concerned commences his duties.

(2) Every employer and every self-employed person shall provide any person employed in an employment business who is to carry out work in his undertaking with comprehensible information on—

(a)any special occupational qualifications or skills required to be held by that employee if he is to carry out his work safely; and

(b)health surveillance required to be provided to that employee by or under any of the relevant statutory provisions.

(3) Every employer and every self-employed person shall ensure that every person carrying on an employment business whose employees are to carry out work in his undertaking is provided with comprehensible information on—

(a)any special occupational qualifications or skills required to be held by those employees if they are to carry out their work safely; and

(b)the specific features of the jobs to be filled by those employees (in so far as those features are likely to affect their health and safety);

and the person carrying on the employment business concerned shall ensure that the information so provided is given to the said employees.

The Regulations are also quite explicit about pregnant women and new mothers.

Risk assessment in respect of new or expectant mothers16.—(1) Where—
(a)the persons working in an undertaking include women of child-bearing age; and
(b)the work is of a kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions, or physical, biological or chemical agents, including those specified in Annexes I and II of Council Directive 92/85/EEC(1) on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding,
the assessment required by regulation 3(1) shall also include an assessment of such risk.
(2) Where, in the case of an individual employee, the taking of any other action the employer is required to take under the relevant statutory provisions would not avoid the risk referred to in paragraph (1) the employer shall, if it is reasonable to do so, and would avoid such risks, alter her working conditions or hours of work.
(3) If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the employer shall, subject to section 67 of the 1996 Act suspend the employee from work for so long as is necessary to avoid such risk.
(4) In paragraphs (1) to (3) references to risk, in relation to risk from any infectious or contagious disease, are references to a level of risk at work which is in addition to the level to which a new or expectant mother may be expected to be exposed outside the workplace.

And remember, there is lots of legislation protecting the employment of pregnant women and new mothers. It’s not acceptable to bully a woman out of a job because she’s pregnant, or sack her because she’s pregnant, or make up spurious excuses to sack her because she’s pregnant, or pay her less than her legal entitlement to maternity pay because you don’t want to, or treat her in any detrimental way at all because she’s pregnant or a mother. And there is nothing at all in the law that says “you can ignore this if you think you’re a small family business.”

Employers also have a responsibility to consult their employees. Obviously, as a union rep, I believe that the best way to do this is via a recognised trade union, either through an elected steward or a union H&S rep. If there is no recognised union in a workplace (and if not, why not?) then consultation can be done in other ways. Employees are the best people to raise management awareness of risks because they’re the ones who are dealing with it day in day out. Listen to them. Take what they say seriously.

Once management know what the risks are, they should be training staff and providing them with information. Staff must be given adequate training, clear instructions and enough information to enable them to work safely. And don’t expect your staff to remember their training for ever. It’s easy for the training to be forgotten or misremembered and bad habits to creep in.Staff need refresher training. Keeping records of who had which training and when will enable an employer to ensure all staff have the training they need and all staff get refresher training regularly. The HR department can help with this. Oh, and remember, staff don’t have to pay for workplace training. It’s management’s responsibility to make sure staff are trained to work safely.

What facilities must an employer provide? Let’s see what HSE has to say about that.

You must protect the safety and health of everyone in your workplace, including people with disabilities, and provide welfare facilities for your employees.

Basic things you need to consider are outlined below.

Welfare facilities

For your employees’ well-being you need to provide:

• toilets and hand basins, with soap and towels or a hand-dryer;
• drinking water;
• a place to store clothing (and somewhere to change if special clothing is worn for work);
• somewhere to rest and eat meals.

Health issues

To have a healthy working environment, make sure there is:

• good ventilation – a supply of fresh, clean air drawn from outside or a ventilation system;
• a reasonable working temperature (usually at least 16°C, or 13°C for strenuous work, unless other laws require lower temperatures);
• lighting suitable for the work being carried out;
• enough room space and suitable workstations and seating;
• a clean workplace with appropriate waste containers.

Safety issues

To keep your workplace safe you must:

• properly maintain your premises and work equipment;
• keep floors and traffic routes free from obstruction;
• have windows that can be opened and also cleaned safely;
• make sure that any transparent (eg glass) doors or walls are protected or made of safety material.

The less said about faecal-stained toilets covered in glitter, the better, I think. Moving on…

With the best will in the world, accidents happen. We’ll move on to talk about industrial injuries in a minute, but we’ll just put the basics here for now.

As a bare minimum, each workplace must have a suitably stocked first aid box, an appointed person to take care of first aid arrangements and information for all employees giving details of first aid arrangements. Personal details should be protected by storing them confidentially in a secure place. The HR department can help with this. If an employer has more than ten employees, or if the employer owns or occupies a mine, quarry or factory, there must be an accident book. This is the law. Oh, and don’t forget to display the health and safety poster.

Now I want to talk about reporting. The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 are really pretty important but even good employers don’t always report when they should. It’s hard to keep all the managers trained and aware of all requirements. This is why refresher training and an HR department are important. RIDDOR lays out instructions for employers, contractors, self-employed persons, members of the public and employees. Employers MUST report any work-related death and certain injuries, diseases and near misses involving their employees wherever they are working.

If you are an employee and have suffered a work-related injury, or have been diagnosed as suffering from a work related reportable disease, you should inform your employer. If you are concerned that your employer has not made a required report you should ask them if they have reported the incident, and/or approach your employee or TU representative. If you still feel that your accident or work related disease has not been properly reported, you may raise your concern with the HSE.

So, what does the employer need to report?

• death
• fractures, other than thumbs, fingers or toes
• amputations
• dislocations of hips, shoulders, knees, spine
• permanent or temporary loss of sight
• chemical or hot metal burn or penetrating injury to the eye
• injury resulting from an electric shock or electrical burn leading to unconsciousness, or requiring resuscitation or admittance to hospital for more than 24 hours
• any other injury leading to hypothermia, heat-induced illness or unconsciousness, or requiring resuscitation, or requiring admittance to hospital for more than 24 hours
• unconsciousness caused by asphyxia or exposure to a harmful substance or biological agent
• acute illness requiring medical treatment, or loss of consciousness arising from absorption of any substance by inhalation, ingestion or through the skin
• acute illness requiring medical treatment where there is reason to believe that this resulted from exposure to a biological agent or its toxins or infected material (I think it could be argued this covers Lyme disease)
• injuries that lead to an employee or self-employed person being away from work, or unable to perform their normal work duties, for more than seven consecutive days as the result of an occupational accident or injury (not counting the day of the accident but including weekends and rest days). The report must be made within 15 days of the accident.

And there’s lots more information on this page about occupational disease and dangerous occurrences which must be reported. The box on the top left of this page has lots of information about how to report.

There is lots and lots of information available for workers and employers regarding H&S legislation. There’s lots of help available too, so there really is no excuse for employers to neglect their responsibilities. If you want to have a look at more information you could try the list on the last page of this, or of course you can contact your trade union or HR department. And do bear in mind that none of the Regulations or Acts make any exceptions for multi-national companies which like to portray themselves as small family businesses. The law is the law.

If people find this post helpful, I’d be happy to do more relating to specific aspects of employment law and employee/employer relations. I am not a lawyer, and although I am a trade union rep, I am not YOUR trade union rep (unless a colleague is reading this, in which case I really fancy a bit of cake, go buy one for us 🙂 ). I can give very general advice and point you to the relevant bits of legislation, but I cannot advise on specific cases, and if you are having problems at work, my advice is always get help from your union.

The Smell of Bullshit

http://chiefcustomerofficer.customerbliss.com/2013/03/14/do-you-talk-to-your-customers/#comment-40374

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 http://anonylush.tumblr.com/ 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.