It is estimated by organisers that over 300,000 people took part in climate change protests in the UK during 2019, and more events are likely to take place in 2020.
Whilst some events passed largely peacefully, the Extinction Rebellion UK-wide protests in October 2019 proved more controversial and resulted in over 1,500 arrests.
Whilst many employers may feel some sympathy with the cause, the disruption caused by the protests, and the loss of workers who want to support the events can be challenging to deal with; and if those workers are arrested, further concerns arise. Regardless of their views, employers will want to know how to deal with workers who seek to participate in action on climate change.
Are Workers Entitled to Protest Climate Change?
Employers should be aware that individual workers have no right to strike in order to join a climate change protest. Trade Unions can, subject to certain strict procedural requirements, organise industrial action in which workers have some protection, but such action must relate to a trade dispute between the employees and their employer. Therefore climate change ‘strikes’ raising awareness of the global climate crisis are unlikely to be eligible for protection.
Workers wishing to participate in such action should therefore book holiday, or seek to rearrange their working hours, in order to attend protest events; but employers will not have to grant such requests if it would negatively impact on the business.
Can Employers Take Disciplinary Action?
Some employers may recognise the benefits of engaging with the issue and marking themselves out as an environmentally conscious company, and may want to try to support the campaign by arranging cover and offering or agreeing to unpaid (or even paid) leave for workers who want to protest. Alternatively, if this would cause operational difficulties, a business may be able to find other ways to support the cause, for instance by hosting a lunchtime event or arranging an appropriate fundraising or awareness-raising activity. But ultimately, if an employee misses work in order to attend an event without permission, then an employer would be justified in taking disciplinary action against that employee for unauthorised absence.
Are There Reputational Risks?
Employers should consider whether they have (or should adopt) a policy which provides that employees should not engage in activity that would damage the employer’s reputation. An employee’s arrest for conduct outside work will not in itself necessarily justify disciplinary action. However, if a policy is in place, and it is reasonable to conclude that the employee’s actions have been detrimental to the employer’s reputation, such action would be justified.
Whether participation in any protest, or forming part of a mass arrest, could reasonably be said to be detrimental to a company’s reputation may well depend upon the company’s ethos and customer base. A misevaluation of this could itself give rise to reputational damage.
If the arrest leads on to charge and conviction, unless a prison sentence were imposed which might justify a dismissal on the basis that the employee could no longer fulfil their contractual duties, the employer will have to consider whether the offence for which the employee is convicted is one which reasonably justifies disciplinary action. Where conduct occurs outside of work, this can be difficult to justify.
What You Should Do Now
Ultimately it will be for each employer to determine the approach it wants to take, but with more action likely, it is worth considering this as we enter the New Year and it may well be prudent for employers to clarify their position to employees in advance of further protests by sending out internal communications and reminding staff of the implications of taking part in these events.
If disciplinary action does become necessary, employers must be careful to follow a fair process, which complies with the ACAS code of practice on disciplinary and grievance procedures, in order to avoid a potential tribunal claim.
For more information please contact Lorna Scully in our Employment Law team on 0121 227 3719 or lscully@vwv.co.uk.
