Client's Newsletter - 25 May 2016


This issue looks at:

·         Is France right to introduce a ‘right to disconnect’ law?

·         Maternity Rights.

·         Should ‘employers’ or ‘third parties’ dictate appearance at work?

    Is France correct to introduce a ‘right to disconnect’ law?

Dress Code

France is in the process of drafting a ‘right to disconnect’ law. This is the right of employees to disconnect from social media, telephone calls from employers and emails after work. Thus an employer will not be allowed to request that an employee should respond to emails in their own time. Nor for that matter will employees be expected to respond to telephone calls. The intention of the French legislators is to enable employees to cut off from the digital world of work. It is fair to say that we are more connected than ever because of mobile telephones, portable computers and tablets. Some argue that we may at time suffer from digital burn out. Thus a right to disconnect law may appear attractive. However I am not sure if it would really afford employees the protection that the French legislators intend. So we will have to wait and see what the legislators produce as new law.

In the interim, I cannot see the introduction of such a law in the UK under the current government. This  does not mean UK staff are not afforded any protection. Legislation such as the Working Time Regulations and Health and Safety at work can be used to provide employees or workers in the UK with some protection.

Employers will also have email and social media policies which could stipulate a cut off point.

Maternity Rights


This short article looks at the rights of women in relation to maternity leave and pay.

Paid Time Off For Ante-Natal Care

·         Pregnant women are entitled to time off from work to attend ante-natal classes.

·         A pregnant woman is entitle to be paid for her absence from work to attend ante-natal classes.

·         No qualifying period is necessary for this employment right.

Health and Safety Risk Assessment

·         A prudent employer would carry out a Health and Safety risk assessment.

·         There is no general obligation to carry out a risk assessment. In O’Neil v Buckinghamshire County Council (2010) IRLR 384, the EAT held  an employer only has a duty to carry out a risk assessment when:

·                            1.       The employee notified the employer of her pregnancy; and

2.       The work carried out by the employee is of the kind that involves a risk of harm or danger to the health and safety of the mother and/ or her baby; and

3.       The risk in question arises from either the processes, work conditions or physical, chemical or biological agents in the workplace.

Maternity Leave

·         A pregnant woman in the work place has the right to 52 weeks maternity leave.

·         26 weeks will be ordinary maternity leave.

·         The second 26 weeks is called additional maternity leave.

·         To qualify for maternity leave the pregnant employee must advise her employer on or before the 15th weeks before childbirth:

o   That the employee is pregnant.

o   The date the employee intends to start maternity leave which can be any time from the 11th week before the date of birth.

·         An employer must then give the employee notice of her return date which an employee is entitled to change; provided the employer is given eight weeks’ notice.

·         If the child is born early, the maternity leave starts the day after the birth of the baby.

During maternity leave an employer and employee can agree up to 10 keep in touch days; however this does not confer a right on the employer. Accordingly the employee does not have to agree to it.

Compulsory Maternity Leave

·         Employees must have at least two weeks off after child birth. If the employee works in a factory, then it is at least four weeks.

Statutory Maternity Pay (SMP)

·         This is available only for eligible employees for a period of 39 weeks.

·         An employee is eligible for SMP if they have worked continuously for their employer for 26 weeks up to the qualifying week – the 15th week before the expected week of child birth.

·         The first 6 weeks the employee will obtain 90% of their average weekly wage before tax.

·         The remaining 33 weeks the lowest of £139.58 or 90% of their average weekly wage. This is paid in the same manner as income and is therefore subject to tax and NI.

·         If the baby unfortunately dies after being born or is still born after the 24th week of pregnancy, the employee will still be entitled to leave or pay.

Maternity Allowance

·         Women who do not qualify for SMP may be able to obtain a maternity allowance for a period of up to 39 weeks. The person must have been employed or self-employed for 26 weeks out of 66 weeks before the expected week of child birth. The allowance is £139.58 per week (or 90% of average earnings whichever is the lowest figure) and is tax free.  Payment starts 11 weeks before the baby is due.

Pregnancy Related-Illness

Maternity leave and statutory maternity pay will start automatically if an employee has a pregnancy related illness in the last four weeks before the baby is due.

Holiday entitlement

·         An employee is entitled to holiday as specified in their contract of employment and this includes mothers on maternity leave.

·         The holiday entitlement of the employee on maternity leave will accrue as if they were still at work in the office. Some mothers simply add the holiday entitlement to their maternity leave.

·         If the holiday is not taken, the government allows up to 28 days to be carried over to the following leave year. This is a factor you should discuss with your employer.

Shared Parental Leave

·   The law has been reformed so that leave can be shared between parents.

·    Shared Parental Leave Pay is £139.58 per week (or 90% of average earnings whichever is the lowest figure) and is tax free.  Payment starts 11 weeks before the baby is due.

Should ‘employers’ or ‘third parties’ dictate appearance at work?


Everyone would have heard of the commotion caused recently by the young lady Nichola Thorp, a temp who was asked to leave work (for a day) without pay; because she failed to wear high heels as part of the work dress code. Nichola Thorp started a petition which was signed by 100,000 people. The matter of women and high heels at work will at a later date be discussed by our MP's in parliament. 

Ms Thorp’s employers changed their dress code policy because of the adverse publicity and she is now allowed to wear high heels. Good for her. What amazed me is that she still has a job.

On Facebook I then posed the question to friends, if Nichola Thorp was a black female would she still have a job? Many refrained from answering the question which was what I expected. One brave man said’ no’. A black female in exactly the same position would have lost her job. Sadly I agreed with the statement.

The closest case I could find  was a young lady, Lara Odifin’s who had been offered a permanent job; however the job offer was withdrawn because her proposed employers were not prepared to accept Lara Odifin with her hair in braids. The young lady posted the matter on Facebook. She did not name the company because she did not want to take legal action and she did not want to be sued.

Both issues Ms Thorp 'shoes'. Ms Odifin 'hair' related to dress code.

It is true, employers can dictate what staff wear at work; however the policy must be fair and reasonable. It should not be discriminatory.  There have been many problem cases regarding dress code and religious symbols. The most famous case of all was Eweida v British Airways which went all the way to the European Court of Justice. 

Lara Odfin prospective employer may have discriminated against her. Lara Odiifin had a potential claim; claims however costs money and Laura took the practical approach and decided not to sue. I have no criticism of this approach. It is pragmatic. Prospective employers who discriminate can be sued. A factor many overlook by them and it is likely Ms Odfin was not truly aware of her rights.