The woke workforce – dealing with employee activists

The last few weeks have seen significant protests taking place on a global scale, with over 7.6 million people in over 4,000 locations taking part in climate strikes between 20 and 27th September. With many taking time off work to join the protests, it raises questions on the legality of doing so, and how employers respond to this.

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. In such case, the employee is ordinarily protected from dismissal by their employer for a minimum period of 12 weeks.

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. 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established that, amongst other factors, a “belief” for the purposes of the Religion and Belief Regulations (which were superseded by the Equality Act) must be genuinely held, pertain to a weighty and substantial aspect of human life and behaviour and attain a certain level of cogency,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.

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. 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.

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 as it 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 for an employer 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.

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. It can 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
  • 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.

Written by: Furat Ashraf, Employment Associate