Climate activism is not a new issue. But for some employers it is becoming a new workplace issue. Employers, like politicians, would prefer to bring people with them on their climate change journey, rather than impose emission reducing measures without consent. But the reality is there will always be diverging views on the pace of change in respect of achieving net zero and other climate change issues. How should an employer who is committed to tackling climate change deal with challenge to their approach from activist employees, or at the other end of the spectrum, climate sceptics?
This can be a complex issue to deal with and involves cultural and legal factors. Many organisations actively promote their ESG credentials and encourage employees to speak up when they have concerns via workplace reporting procedures. It then becomes quite tricky to say to employees who actively disagree with their employer’s climate change strategy “that’s not what we had in mind”, and “you’ve gone too far”.
In this Law-Now we consider what climate activism in the workplace might look like and the legal risks that arise when employee actions based on protected beliefs cross the line. We also discuss recent case law on protected beliefs, where a theme is emerging that courts are more willing to protect an employee’s freedom of expression, even where their views are unpalatable to others.
Climate activism can come in many different forms and be collective and individual.
Collective activism is where employees join together over climate concerns, for instance, creating a Climate Action Group that demands a change in approach. At an individual level an employee may raise a grievance about their employer’s approach to a particular issue such as carbon emissions. It may also arise when the choices a person makes about the way they live their life conflicts with their employer’s processes. For example, an employee who objects to single use plastics to the extent they refuse to deal with them at work or who refuses to take air travel even when this is necessary for business trips.
It may also involve a blurring of the boundaries between personal and professional life, particularly if comments are posted by an employee on social media which are critical of their employer’s approach to climate change.
How should an employer respond?
Approaches will vary depending on the culture, the issue itself, and the way in which employees have raised the issue. There is a difference between (i) an internal campaigning group posting measured, constructive views about positive change and (ii) protests that disrupt commercial operations or pose reputational risk.
One response is to engage with employee activist groups and create forums for employees, for example to share their ideas and to collaborate on sustainability initiatives. Part of this strategy will be to listen and engage in dialogue with workers.
The benefits of engagement?
There are undoubtedly benefits in engaging with employees on climate change. An employer’s climate change track record and stance can impact employee attraction and retention, particularly in relation to younger generations.
A recent Deloitte survey found that 40% of Gen Z (born after 1996) and Millennials (born between 1981 - 1986) would change jobs over climate concerns. In May 2023, over 500 students and recent graduates of top UK universities pledged a “career boycott” of major insurers, saying they will not work for certain firms if they support controversial fossil fuel projects.
Belief or misconduct?
When employees cross the line into misconduct because of their strongly held beliefs, employers should pause to consider the legal risks before they take disciplinary action.
Take the example of an employee who publicly criticises their employer’s lack of progress on climate change and posts damaging comments on social media. They are a member of several environmental groups and would describe themselves as a climate campaigner.
The reason for pausing to consider next steps is because there is a risk that a belief in climate change amounts to a protected belief under the Equality Act 2010, and therefore an employee is protected from discrimination because of that protected belief. Taking disciplinary action or dismissing an employee could result in an tribunal claim for discrimination.
If the matter were ever to get to tribunal, the tribunal would consider the two steps below to determine whether the employer’s actions were discriminatory:
- Step 1 Does the belief amount to a protected belief under the Equality Act 2010?
- Step 2 If so, is the conduct in question closely connected to their protected belief?
Step 1 - Is the belief protected?
The answer to this question can only be given by a tribunal, and is fact specific. Employers faced with making this decision must apply a five step legal test to take a provisional view. However, if there is evidence to meet the test, then a good starting point may be to assume the belief is protected.
In 2009, the EAT held in Grainger plc v Nicholson that a belief in man-made climate change is capable of being a philosophical belief and established the five step legal test for deciding whether a belief is protected in law. In order to qualify for protection in the Equality Act 2010, the belief must:
- be a genuinely held belief;
- be a belief not an opinion;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.
A series of recent cases has clarified that the fifth criterion in the test, that the belief must be worthy of respect in a democratic society, covers a wide range of issues including views that may be unpalatable and offensive to others.
The cases, which, so far, mainly centre around gender critical beliefs, emphasise an employee’s right to freedom of expression. In future these developments may extend to other beliefs, such as climate scepticism.
Step 2 – If so, is the conduct in question closely connected to that belief?
Where an employer is faced with a “manifestation” issue: in other words, where an employee’s actions are driven by their beliefs, employers should first determine if there is a close connection between the conduct and the belief, and whether the conduct was objectionable.
When deciding whether an employer’s response to the belief-driven conduct was discriminatory, a tribunal should conduct a proportionality assessment. In practice, this means employers must conduct a balancing exercise, taking into account the employee’s right to express their belief and the employer’s objective in taking action. Proportionality in this context means asking:
- whether the objective the employer seeks to achieve (e.g. a consistent climate change message and reducing reputational risk) is sufficiently important to justify the limitation of the right in question;
- whether the limitation is rationally connected to that objective (e.g. does dismissing an employee for comments online help ensure a consistent climate change message?);
- whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; (would a sanction below dismissal be more appropriate, or no disciplinary action and an alternative approach?) and
- whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter (that is, how important is the employer’s objective in contrast to the limitations placed on the worker?)
The EAT in Higgs v Farmor’s School also listed several issues that are relevant in an employment context when answering the proportionality points listed above, while stressing that each case is context specific.
This list includes looking at the tone and the content of what the employee has said or done, and the employee’s understanding of the likely audience; how this affected the rights of others, and the ability of the employer to run its business. Another factor is whether the employee has made it clear that the views expressed are personal or could be seen to represent the views of the employer and whether that might present a reputational risk.
In most cases, employers will want to engage with employee activists and harness their passion in a constructive manner in the workplace. As we mentioned in the introduction, many organisations actively promote sustainability networks and employees could be encouraged to get involved in these groups.
The fact that an activist expresses a view that may be offensive to others is part of freedom of expression. The question becomes how they express that view and whether they do that in an objectionable way. An employer’s role is to promote respect and tolerance, and where boundaries are crossed to respond in a balanced way.
Ideally, employers should plan to deal with challenging issues, and not be left to react to events without a framework or plan. Reputation management needs to be considered. Boundaries around contacting the press or reporting workplace issues on social media should be made clear to employees as part of this approach.
The employer’s preferred approach will depend on company culture and attitudes towards ESG. If an employer promotes ESG as part of their values, then adopting a restrictive approach towards what employees can say or do about climate change and other ESG-related matters may seem to be lacking in authenticity. Equally, a claim arising because an employer has taken stringent disciplinary action against an employee whose climate change beliefs diverge from the company approach is unlikely to be helpful from a reputational point of view.
As the sustainability agenda becomes increasingly prominent in the workplace it is inevitable that there will be diverging views between some employees and the official company approach. The point for now is to be alive to this and realise the benefit of harnessing these views, and the risks of taking action without considering protected beliefs, freedom of expression and a proportionate response.
Where an employee raises concerns with their employer about environmental damage which they believe to be true, another issue to consider is whistleblowing and whether they may be making a protected disclosure. We will discuss whistleblowing and disclosures about environmental damage in a future Law-Now.