The so-called ‘climate strike generation’, led by teenage activist Greta Thunberg, are urging everyone to join in with their protests about climate change.
The school climate strikes she has inspired, saw 1.4 million young people walk out of lessons in March this year, while in September this year, a record 7.6 million people took to the streets in cities across the world, with the aim of addressing the ecological crisis.
As a result, employers are being urged to consider how they will react if staff members walk out of their workplaces as part of these ‘strikes’.
In this article, we explain the legal options available should your staff choose to participate.
Reaction – for or against?
The reaction to the protests by business owners has been mixed.
Several larger businesses have actively supported the action. For example, Outdoor clothing company Patagonia “actively encouraged” its employees to take part in the recent world strike and offered to provide bail for any workers arrested during the actions, as part of a long-standing company policy. Meanwhile, Shell said it would allow staff to take annual leave for the recent world protest.
However, for other businesses the strike action has raised a dilemma. Many are unwilling to countenance potentially illegal or highly disruptive action, but still want to show they are engaging with important issues and may be wary of adverse publicity.
Such caution towards the action is understandable. Global Climate Strike raises a lot of questions about how employers should view it because employees cannot walk out of work and expect to be protected from unfair dismissal, because if they do strike, it has to be compliant with detailed, complex legislation.
Ultimately, every company must take its own individual approach to deciding what was appropriate, the potential business impact and its ongoing approach to sustainability.
Is it legal for employees to join in a strike over climate change concerns?
The Trade Union and Labour Relations (Consolidation) Act 1992 sets out very specific rules as to when it is legally permissible for an employee to take part in a strike.
However, none of the specific rules of that legislation are satisfied in the case of climate change.
Fundamentally, for an employee to be protected against dismissal; disciplinary action or other legal action for breach of contract, a strike or other form of industrial action taken must be in relation to a dispute between workers and their employer.
In other words, employees cannot legally strike for political reasons.
Often, whether a strike is a political protest, or a genuine trade dispute can be difficult to establish, such as in cases where political decisions directly affect a person’s terms and conditions of employment.
However, there would appear to be little ambiguity in relation to strikes regarding climate change, which is a political gesture aimed at forcing politicians to take the global climate crisis seriously and to raise awareness of the risks posed by climate change.
However, while this is not a traditional trade union activity, it is worth noting that the TUC demonstrated support for the cause back in August, when it passed a motion at its congress to call a 30-minute workday “solidarity stoppage” with the global school student strike on 20 September.
So what options are available to employers?
While some companies may be accepting of, or even encourage, such activism, there will be others who will see the strike as a threat to business. Depending on your stance, there are a number of ways you may wish to respond:
Take disciplinary action.
It may not be a popular approach, however, from a purely legal standpoint, if one of your employees was to go on strike during this protest, you would be entitled to take disciplinary action against them.
Refusing to attend work, or leaving without permission, could potentially constitute gross misconduct, which may result in dismissal without notice or a payment in lieu.
However, much will depend on the particular circumstances of each case, so it is always a good idea to take advice before acting.
You should also give some thought to the potential reputational consequences of taking a heavy-handed approach and weigh up whether adopting a more flexible stance may be beneficial.
Meet in the middle.
In this scenario, one option is to treat the climate strike in much the same way as other national events, such as the World Cup, by suggesting that if employees wish to take time off, they book this as annual leave.
Alternatively, if you are sympathetic to the cause, you may choose to allow unpaid leave for those who wish to attend.
Rather than risk a mass exodus, you may wish to suggest that employees use their lunch breaks to join a local demonstration or that if they wish to donate to a climate change charity, such as the WWF or Greenpeace, you will match their donation.
Another option may be to organise your own fundraising event to allow employees to show their support while at work, without too much down time or disruption.
It may sound small but sharing a picture of yourself at your desk (or a group selfie with colleagues) and tagging it #ClimateStrike shows solidarity with protesters. For those who can’t join actions, the digital #ClimateStrike offers banners and social media graphics to share online.
On the other end of the spectrum, employers must recognise the benefits of actively engaging with social issues and marking themselves as a socially and environmentally conscious company.
Further, it is wonderful to have staff who are positively engaged in things like conservation and climate change and perhaps looking at ways the company can support these activities will result in more engaged employees. Further, by feeling that they are making a positive contribution, it may lessen the urge to go join a protest.
Encouraging employees to take part rather than reprimanding them for it and considering how you can get involved with the cause as a business, is also likely to reflect positively on your image and make you more attractive to customers and prospective employees.
Whether you are against employees taking part in such protests, or open to a more relaxed approach, it’s a good idea to make your position clear ahead of the time, if possible.
The last thing employers and employees alike want is an unofficial walkout, as it could leave employees legally “wide open” and without protection. It is much better to have a dialogue from management and staff, because they could work together on this issue.
Review your policies
Many organisations will already have various environmental policies in place (whether they work within them is another matter), and many will already be aware of the need to show their ‘green credentials’ to their staff and potential customers.
Rather than being reactive, it will be more productive for businesses to now look at the wider policies and practices they have and take steps to meet and incorporate those headline aspirations to their own workplace and workforce.
Whether that means getting involved in future actions; adopting a case management system to reduce paper use; encouraging car-sharing for the commute to work; signing up to the cycle to work schemes; turning off the office lights after the closing time or taking the computers off standby when not in use; is up to each business and its staff.
In respect of climate change and protests over it, every company must take its own individual approach to deciding what is appropriate, the potential business impact and its ongoing approach to sustainability, when deciding how to respond to the growing and continuing calls for action from everyone.
What is clear however, is that it is wonderful to have staff who are positively engaged in their own interests, whether it is climate change; education or animal welfare and looking at ways a company can support those activities (or at least accommodate them) will result in more engaged employees.
This article was written and researched by Albert Bargery, Solicitor at our Isle of Wight Office. Albert advises employers and employees on the Isle of Wight and throughout the UK. You can contact Albert by email: firstname.lastname@example.org
Don’t forget getting advice from a Solicitor does not have to be complicated or costly!
Photo by Kelly Sikkema on Unsplash