Stakeholder voice on green issues
Whistle-blowing law
All kinds of environmental damage covered
Legal obligations
Broad scope of whistle-blowing law
But is there a public interest?
Treatment of climate activists
Future litigation?
Comment


The climate emergency will be a major concern to employees in the years ahead. This may lead to a rise in climate-related whistle-blowing and future litigation. UK whistle-blowing law is drafted in a way that potentially gives broad protection to employees who voice climate concerns at work. However, there are many areas of uncertainty, as this article explains.

Stakeholder voice on green issues

Young people in particular are profoundly concerned about the climate crisis, with the environment emerging as the top personal concern for Generation Z. Evidence suggests that younger employees are both increasingly activist and want to work in businesses that take social issues seriously.

Employers are also coming under increasing scrutiny from regulators, the government, investors and other stakeholders. Earlier in 2022, the government introduced new requirements on publicly quoted companies, large private companies and limited liability partnerships to disclose how they are addressing climate change in future annual reports. In France, new laws oblige employers to inform and consult with their social and economic committees on the environmental implications of business decisions affecting the workforce and, although similar legal obligations are not currently expected in the United Kingdom, the Trades Union Congress is encouraging a greater focus on environmental issues.

All of this suggests that companies will need to both talk and do more about climate issues and that they will need to be ready to be held accountable for their statements and actions.

Whistle-blowing law

UK law protects a whistle-blower who makes a "protected disclosure" about specific types of wrongdoing, where they reasonably believe this to be in the public interest. This includes disclosing information that tends to show that:

  • a criminal offence has been committed;
  • any legal obligation has not been complied with; or
  • "the environment has been, is being or is likely to be damaged".

All kinds of environmental damage covered

Perhaps surprisingly, there is no statutory threshold for environmental damage. When the legislation was first conceived, Parliament may have had in mind things like the pollution of water supplies or scandals such as those seen with diesel car emissions. As actually drafted, any adverse impact on the environment appears to be sufficient. Pointing to the damage caused by practices such as business flights, maintaining a fossil fuel company car fleet, or not having proper recycling systems, could all potentially count as a protected disclosure under the wording of the legislation.

The Chancery Lane Project (an organisation promoting climate-aligned legal drafting) refers to conduct damaging the environment that is not part of a reasonable working life in their template environmental whistle-blowing policy. As case law develops, the courts may have to contrive a similar sort of threshold around the concept of environmental "damage" in the legislation so that it covers the sort of damage which is out of the ordinary or which could be objectively seen as wrongdoing. It is difficult to see, however, where the line would be drawn. Would, for example, an employer's choice to manufacture with single use plastics for cost efficiency constitute the sort of damage that should be covered by whistle-blowing law?

Legal obligations

Disclosures that tend to show non-compliance with any legal obligation are also covered by UK whistle-blowing law. As climate-related legal obligations increase, so too will the scope for employees to blow the whistle on a failure to meet those obligations. For example, greenwashing may breach consumer laws and is arguably more likely to be identified and called out by employees than by customers. That could be a disclosure about legal non-compliance that is protected by the law.

Broad scope of whistle-blowing law

The environmental damage, or the non-compliance complained about, can be taking place inside or outside of the United Kingdom. It does not even need to be on the part of the employer – it can also relate to the actions of third parties, such as suppliers, shareholders or a parent company. It could even count as whistle-blowing if an employee refers to climate damage caused by society more generally.

There can still be a protected disclosure, even if the employer is well aware of the information being disclosed, and even if the employee does not label what they are doing as whistle-blowing at the time. Merely making an allegation or voicing a concern is not protected – there must be some kind of disclosure of information. However, as long as some facts are conveyed, the test is likely to be met.

But is there a public interest?

Employees are protected only when making disclosures that they reasonably believe are in the public interest. Case law has established that there are two elements to this:

  • whether the employee subjectively believed at the time that the disclosure was in the public interest; and
  • if so, whether that belief was objectively reasonable.

There might be more than one reasonable view as to whether a particular disclosure was in the public interest, and the tribunal should not substitute its own view.

Climate damage almost inevitably impacts the public. There may, however, need to be a new spotlight on the public interest test in the climate context. Take, for example, an employee expressing evidence-backed concerns, through a whistle-blowing procedure, that business class air travel disproportionately and unjustifiably damages the environment and should be prohibited under the employer's policies. In today's world, is it reasonable to regard that as a disclosure in the public interest? Even if some tribunals disagree, will it become reasonable to regard it as a matter of public interest in a few years' time as environmental consciousness shifts fast?

Treatment of climate activists

Under UK whistle-blowing law, it is unlawful to dismiss an employee or subject them to a detriment for making a protected disclosure. This could be a fertile area for tricky whistle-blowing cases where the employer says they dismissed or subjected the employee to a detriment not because they raised environmental concerns, but because of the manner in which they did so. Many climate protesters, faced with the life-threatening risks posed by climate change, are using radical civil disobedience and other extreme tactics to try and get their message heard. If employees use those tactics in the workplace, employers could find themselves in a dilemma. They may have grounds for taking disciplinary action, but their motivation will be scrutinised carefully – and taking action becomes loaded with legal risk if the employee is classed as a whistle-blower.

Climate activists may also have other legal protections. In the 2010 Grainger v Nicholson case, the UK Employment Appeal Tribunal ruled that a belief in climate change, coupled with a belief that people are under a moral duty to address this, was potentially protected under the UK equality laws that prohibit discrimination on the grounds of religion or belief. This may well give additional protection to employees who claim that they have been disadvantaged at work because of their commitment to addressing climate change.

Future litigation?

This is an area that is ripe for future litigation. Case law will be needed to settle many areas of uncertainty, including the difficult questions of what type of environmental damage can be called out in the public interest, whether the disclosure caused the employer to retaliate, and the difficult topic of when employees are protected if they act purely out of a cynical attempt to garner additional employment protections.

Comment

There is no legal requirement to list all types of protected disclosure in a whistle-blowing policy; therefore, employers do not need to cite environmental damage as an example. That said, from a risk management perspective, it is worth checking that environmental damage could at least be covered by the company's definition of "wrongdoing" and that those responsible for the whistle-blowing policy are aware that disclosures in this context can fall within the scope of UK whistle-blowing law. This is especially the case where organisations promote themselves as being environmentally conscious. It may also be worth considering if the company has the internal capability to carry out investigations into disclosures about environmental damage.

Some employers may wish to take a different approach and positively encourage employees to speak up about climate issues. Such employers could consider expanding their whistle-blowing policy – for example, to encourage employees to call out any breaches of their own internal climate targets or conduct that damages the company's reputation as an environmentally conscious business (as recommended by the Chancery Lane Project).

More generally, all employers will need to be ready to address the growing climate-related concerns of their workforce. They should expect their employees and other stakeholders to call out practices that damage the environment to an increasing extent in the years ahead. They should also be aware that UK whistle-blowing law is currently drafted very broadly when it comes to climate-related whistle-blowing and that it may give strong protection to those voicing environmental concerns at work.

For further information on this topic please contact Jonathan Carr or Gemma Taylor at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.