The woke workforce – dealing with employee activists

By Furat Ashraf

10-2019

The last few months have seen a wave of mass protests taking place across the world. Whether it's the ongoing civilian protests in Hong Kong, the "gilets jaunes" (or yellow vest) movement in France or the Kashmir protest outside the UN headquarters in New York, September has seen people take to the streets like never before. Perhaps the most significant protest that took place on a global scale was the climate strike between 20 and 27 September that saw millions protesting in over 4,000 locations worldwide. This month we take a look at the legal issues and best practice for employers faced with an increasingly politically active workforce. 

The right to strike 

Article 11 of the European Convention of Human Rights (ECHR) guarantees every person’s right to freedom of peaceful assembly and association in the UK. So what happens if employees wish to exercise these rights during working hours? 

An employee may attend a strike during working hours and without approval from his or her employer if this constitutes protected industrial action under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA). However, this requires there to be a "trade dispute" with the employer pertaining to specific employment-related matters such as terms and conditions of employment or physical working conditions. A strike, defined in TULCRA as any "concerted stoppage of work", will only be lawful if there has been compliance with detailed procedural requirements which ensure adequate notice and majority support of a properly-organised ballot. In such case, the employee is ordinarily protected from dismissal by their employer for a minimum period of 12 weeks. 

In addition to the above, employees are also protected from detriment or dismissal on the grounds of their participation in trade union activities. The scope of trade union activities is to be determined by a tribunal based on the factual circumstances and activities relied upon. It may also be relevant whether the employee carrying out such activities is a trade union representative. 

While many unions often encourage their members to take part in public interest strikes (see the recent TUC statement in relation to "30-minute" workday stoppage in solidarity with global school student climate strike), it is unlikely that a strike that is motivated by political reasons and aimed at raising awareness of a particular cause or lobbying the government, will constitute a trade dispute or a trade union activity. In principle therefore, an employee that leaves work to attend any such strike during working hours may be disciplined by their employer if they do so without approval. 

Philosophical belief under the Equality Act 2010

Religion or belief is one of nine protected characteristics covered by the Equality Act 2010. In the case of Grainger v Nicholson [2010] ICR 360, it was established that, amongst other factors, a “belief” for the purposes of the Religion and Belief Regulations (which were superseded by the Equality Act) must be genuinely held, pertain to a weighty and substantial aspect of human life and behaviour and attain a certain level of cogency, seriousness, cohesion and importance. It was held in that case that a genuine belief in climate change was potentially capable of amounting to a philosophical belief. 

Where the employee’s participation in a protest or strike could be based on a belief that is protected characteristic under the Equality Act, employers will need to be cautious not to discriminate against that employee by subjecting him or her to any detriment on this basis. While this would not ordinarily prevent an employer from taking disciplinary action where an employee is absent without approval, the facts and circumstances of each case would need to be considered carefully.

In practice, in a non-unionised workforce, few employees are likely to risk disciplinary action by being absent without authorisation. It is more likely that employees may request paid annual leave in order to attend a public protest or strike. Provided the employee has complied with any notice requirements set out in their contract or in any holidays policy, employers should not ordinarily refuse requests based on the reason for the leave, unless participation would have a negative or detrimental impact upon their employment or the reputation of the business that they work for. 

Employee arrests

In the last couple of days, over 280 people have been arrested during the Extinction Rebellion protest in central London. A police investigation or criminal charge with respect to activity outside of work is not necessarily a reason for disciplinary action in and of itself. Before commencing any disciplinary process, the employer will need to consider carefully the nature of offending conduct and whether the matter has any bearing on the employee's suitability for their role or their relationship with their colleagues, the business or its customers and partners. It will also be important to ascertain what exactly has happened; clearly an employee being arrested for a few hours during a protest and released without charge would not be the same as an employee being convicted of a criminal offence. 

Social media posts

If someone is taking to the streets for a cause, you can usually bet that they have already taken to Twitter or Facebook first. An employer cannot regulate an employee's personal use of social media and seeking to do so could potentially be a breach of their right to a private life under Article 8 of the ECHR. However, in today's world, a simple Google search usually reveals where an individual works, so inappropriate or offensive social media posts by employees can carry significant reputational risk for an employer. 

In the current climate, it is important to have appropriate policies in place which clearly identify prohibited uses of social media by employees. These can include discriminatory or defamatory comments about colleagues, clients or third parties or any activity which damages the reputation of the business, whether directly or indirectly. If an employee breaches such policies, an employer will need to consider whether disciplinary action is warranted depending on the nature of the comments and taking into account the impact on other employees and the damage to the business more generally.  

How should employers approach a politically active workforce? 

  • Consider whether to give employees paid time off or unpaid leave to participate in any protests or strikes that are in line with your CSR objectives. An organised cessation of work can often be easier to manage and from a resourcing perspective it may be possible to stagger any absences from the office. It can also boost the employer's public profile if employees are actively encouraged to participate in protests or strikes which further causes that are related or connected to the business.

  • If you instruct employees not to take part in any protest or strike, ensure that you have a clear justification for this and that they are aware of the consequences if they do take part without company approval. Be aware that depending on the cause in question, taking disciplinary action on this basis could lead to negative publicity and be viewed by the rest of the workforce as an undue interference in an employee's personal life.

  • If a particular cause has significant support, consider organising a company event or organisation on the same day as the strike, so that employees can still show their support but disruption to the workplace is minimal.   

  • Review your social media policies to ensure that they are clearly drafted and employees know what activity is acceptable and unacceptable in the context of the employment relationship.