Climate change protests: Five concerns for employers

Author: Stephen Simpson

Widespread environmental protests, such as the Extinction Rebellion, are having an increasing everyday impact on employers. We round up potential issues for HR professionals who are dealing with disruption to their employer's operations as a result of climate change protests.

What if our staff want to take part in climate change "strikes" during working hours?

Climate change protests often involve the masses taking to the streets. However, employers are also increasingly faced with the novel situation of their staff protesting about environmental issues during working hours, for example via a "climate change walk-out".

Strictly speaking, employers are entitled to treat these walk-outs as unauthorised absence. The employees who walk out are in breach of their contract of employment and employers do not have to pay them for periods during which they are not working. An employer could take disciplinary action against an employee who goes absent without leave to take part in climate change protests.

Employees taking part in a climate change walk-out would not have the same protection as staff who are carrying out "lawful" industrial action. This is because, to be lawful, the action would have to be taken "in contemplation or furtherance of a trade dispute". In addition, there are strict rules around union notification and balloting for walk-outs to be considered "lawful" industrial action.

While the nature of some businesses necessitates a strict approach to walk-outs, some employers can to take a more flexible approach for the sake of maintaining good employee relations. Options include:

• putting in place temporary flexible working arrangements, for example allowing staff to make up the time taken for the "walk-out" at another time; and
• allowing employees to take annual leave to take part in protests, normally on a "first-come, first-served" basis.

If an employer gets wind of plans for a protest during working hours, it is a good idea for it to warn employees of the possible consequences of unauthorised absence.

What if our staff want to "campaign" about the environment during working hours?

There is a difference between an employee:

• expressing their views about the environment to colleagues in the normal course of their working day; and
• running an unsanctioned, heavy-handed "campaign" about environmental issues during working hours.

Employers should encourage staff to channel their passion about protecting the environment through formal channels, such as approved workplace charity activities and membership of any "green" focus groups run by the organisation.

Employers are entitled to take a dim view of employees who:

• foist their own views onto colleagues or customers;
• display politically charged posters or banners;
• wear badges or clothing (such as T-shirts) that have politically charged slogans or messages; and
• misuse their facilities or equipment, such as printing out campaign flyers on work printers.

In many cases, a quiet word to an employee who is misbehaving in this way is all that is needed. However, disciplinary action might be required in extreme cases, for example if an employee who has been spoken to continues to promote their views in an inappropriate manner.

Can we control our employees' participation in environmental protests outside work?

To a large degree, employers can control employees' behaviour while they are at work. However, employers should be cautious about dictating employees' actions outside work, for example while attending environmental protests.

Employees have rights under the Human Rights Act 1998 to freedom of assembly and association, freedom of expression and freedom of thought, conscience and religion. This means that employers have to find a balance between looking after their own interests and not unduly interfering with what employees are doing outside work.

For example, an employer could take disciplinary action against an employee who acts unlawfully during protests, particularly given the wide exposure that the events could have on the news and on social media. The employer could argue that the employee's behaviour has brought the employer into disrepute and damaged the employer's business.

Similarly, an employer may be able to take disciplinary action against employees where their actions outside work:

• create a conflict of interest, for example if the protests involve criticism of the organisation's customers or business allies; or
• fall below the regulatory standards required within their profession, particularly where those standards involve upholding the rule of law (such as the legal profession) or maintaining impartiality (such as civil servants).

What if our staff struggle to get to work because climate change protests disrupt their journey?

In principle, employers can refuse to pay an employee during periods when they are not at work because climate change protests disrupt their journey.

This is because an employee who is not working is not fulfilling their side of their contract of employment, and so the employer does not have to pay them. This is the case even if the employee's non-appearance is out of their control, for example because of disruptions to public transport.

However, employers should take a pragmatic approach when an employee is struggling to get to work because of disruptions to public transport. The most common solution is to provide temporary flexible working arrangements, whereby staff who are late can make up the time later. Another option is for the employee to take the time that they have missed as annual leave.

Where an employee is facing severe delays and they have the technology for remote working, the most sensible solution may be for the employee to work from home temporarily.

Employers should always remember that showing a degree of flexibility during periods of transport disruption can benefit staff morale and their reputation as a good employer may benefit in the long run.

Should we take action if an employee mocks a colleague over their views on the environment?

A lively and respectful debate between colleagues about environmental issues can be healthy. However, employers and staff should remember that it can constitute harassment under the Equality Act 2010 for an employee to:

• harass a colleague for their personal beliefs; or
• foist their own beliefs onto colleagues.

There is a stringent five-stage test before a belief, including environmentalism, is considered to be a "philosophical belief" under the Equality Act 2010. This makes philosophical belief discrimination cases rare and notoriously difficult to win.

However, employers should be aware that an individual's belief in the importance of tackling climate change that deeply influences their lifestyle can constitute a philosophical belief. In Grainger (see box on right), the claimant successfully argued that his belief is protected because it influences every part of his life, from his choice of home, how he travels, what he buys, what he eats and drinks, and what he does with his waste.

In Conisbee v Crossley Farms Ltd and others ET/3335357/2018, an employment tribunal held that vegetarianism is not a philosophical belief under the Equality Act 2010. However, the tribunal suggested that veganism is more likely to be protected under the Act. This is a first-instance decision that is not binding on other courts and tribunals. We may see the case law on discrimination against vegetarians and vegans develop in the next few years.

In any event, employers should ensure that employees' personal beliefs are treated with respect and dignity. Employers can do this via equal opportunities and dignity at work policies and equal opportunities training for staff. Employers should also ensure that line managers deal with complaints of bullying and harassment fairly and promptly.