On 20 and 27 September 2019, millions of people across the globe are expected to take part in strikes in an effort to ask politicians to increase action on the climate crisis. The proposed strike action has been called by Global Climate Strike, an environmental group born out of the international school strike movement inspired by the young Swedish activist, Greta Thunberg and there have been calls for employees to leave their workplaces to join other strikers in voicing their concerns.
For some companies, the planned protests are being viewed as supportive of their values and branding, and as such they have chosen to actively encourage or support employees to participate. For others, however, the activism poses a unique quandary as employers may wish to minimise exposure to any potentially illegal or disruptive activity whilst being supportive of their employees and mindful of potential adverse publicity.
In the lead up to the forthcoming strikes it is therefore important for employers to start to consider how best to react to employees who may plan on participating in the action and to understand the parameters of what they can and cannot do in response.
Right to strike?
The first question that employers may ask is whether their employees have any legal right to leave their jobs to take part in these environmental protests, or can employers prohibit employees from taking part?
As it stands, employees cannot arbitrarily walk out of work without permission and expect to be protected from disciplinary action. Withholding labour in circumstances where there is no permitted right to do so will amount to a breach of contract. There are however limited protections in the case of strike action organised by a trade union. Where certain conditions are satisfied, employees are protected against dismissal or detriment. These conditions are laid down in legislation and for a trade union organised strike to be considered lawful, it must be taken “in contemplation or furtherance of a trade dispute”.
What is unique about the planned global action is that, although like industrial action it will involve employees leaving the workplace and downing tools, it does not directly fall under the description of trade union activity to which the statutory protections apply. As the planned action appears to be aimed more closely at pressing for governmental change, rather than direct trade disputes with employers, it will fall short of protected industrial action. Dismissals resulting from employees walking out of work to participate in the strike are therefore unlikely to be prohibited in the same way as where there is a genuine trade dispute.
Whilst nothing expressly prohibits employers from refusing requests from employees to join the strikes, or indeed from instructing its employees not to participate in the protests, employers should however be careful to consider the reputational risks that could arise when implementing a blanket prohibition on employees participating in such action.
Risk of discrimination
In additional to the reputational risks, there is also the issue of whether a blanket prohibition on participation could give rise to claims of discrimination. Following the case of Grainger v Nicholson, climate change can be considered a philosophical belief under discrimination legislation. As the Equality Act 2010 makes it unlawful to discriminate against someone on the basis of their religion or belief, employers should be careful when framing any prohibition on participation in the action. Although to take action against an employee for their refusal to work would not normally in itself result in a claim for detriment, the risk here is that it could fall under the description of discrimination.
Finding a middle ground
So how can employers strike the right balance in responding to employees who wish to participate in the planned protests?
A practical approach that some multinational companies have taken is to make clear to employees that, whilst they are free to take part in the action, this must be taken as annual or unpaid leave. This can reduce the risk of any discriminatory claims arising out of a blanket ban on participation whilst ensuring that the business is able to plan ahead and put in place cover or mechanisms to ensure minimal disruption is caused by scheduled absences.
Employers should be mindful of the reputational risks associated with preventing employees from participating, but at the same time it is also important to consider the potential adverse consequences of being supportive of their employee. Due to the expansive reach of social media, the boundary between work life and private life can become somewhat blurry. Whilst it is impossible and ill-advised to completely restrict how employees express their political opinions outside of the work place, employers should also bear in mind the effect that an employee’s actions may have on their public image and their duties to their stakeholders who may not be as sympathetic to a particular viewpoint as the employer. If employers do not wish to be associated with these strikes due to legitimate concerns of reputational damage then this should be made clear to participating employees in advance, in the same manner as any other offsite conduct.