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Striking a Balance – Activism and the Workplace

11 October 2019 #Employee relations

In the wake of September’s Global Climate Strike, protests previously confined to the personal sphere are now spilling over onto the streets and taking place during the working day.

This article considers the legal position of employees who participate in this kind of activism, with a view to helping organisations take a considered approach to their response.

Legal protection during strikes

Normally, taking a day off work without permission would be a disciplinary matter. However, participants in lawful strikes have some immunity.

In UK law, a strike is “a concerted stoppage of work” by 2 or more workers, which is only lawful if it is a “dispute between workers and their employer” about their employment and the balloting requirements have been met.

There is therefore no legal protection against disciplinary action or dismissal for employees who take unauthorised time off to demonstrate about broader political issues. However, organisations would also want to consider the wider implications of disciplinary action, such as impact on employee morale or reputational consequences.

Legal protection for beliefs

“Philosophical beliefs” are protected under the Equality Act 2010 but the case law demonstrates that this threshold can be difficult to meet.

In Grainger v Nicholson, it was held that climate change can be a philosophical belief but must be a “weighty and substantial aspect of human life and behaviour” and have “a certain level of cogency, seriousness, cohesion and importance”. Mr Nicholson demonstrated this degree of commitment and consistency in following his beliefs, but the bar is high. It is also just the first part of establishing a claim, which would need to show discrimination and detriment.

Taking leave

In the run up to the Global Climate Strike, some employers were vocal about their intention to support employees’ ability to take part in the protests.

However, organisations do need to think carefully before granting requests from an employee to take unpaid time off for a public protest. Organisations need to consider whether they wish to be reviewed as condoning, or even supporting, the protest in question – which some employers do, as this may fit the organisation’s own ethos. Nevertheless, making this kind of allowance may lead to employee relations problems if the organisation later decides not to permit unpaid leave to participate in political protests of a different type.

Employees who call in sick having had leave requests refused can expect to face disciplinary action. However, if an employee calls in sick on an individual day without having previously requested to take the day off, the organisation is only likely to know about it if they tell colleagues they were at the protest.

Some employees may opt to book annual leave to attend events of this nature, and there will be no reason for employers to refuse such requests, as long as they are made in accordance with the employer’s usual practices.

Actions during employee’s own time

If employees are authorised to have time off work to take part in a protest, whether as annual leave or unpaid leave, does this raise problems for employers?

Employers generally cannot police how this time is used. There may be relevant clauses in an employee’s employment contract or in non-contractual policies that address how the employer will view and/or manage behaviour outside of work that has an impact on the organisation’s reputation.

However, to the extent that any behaviour is entirely unconnected to the employer and does not damage the employer’s reputation, employers are not entitled to interfere – doing so could even amount to a breach of employees’ rights, such as the right to freedom of expression and freedom of assembly and association.

Conclusions

The issues drawing protestors to the streets are complex, and there are no simple answers to the question of how organisations should respond. However, by knowing the law and communicating clearly with employees about what is expected of them, organisations will have a better chance of finding a way forward.

One way could be to canvass the views of employees in order to identify other actions that also demonstrate solidarity. For environmental issues, this could be achieved by the organisation scrutinising and improving its own sustainability credentials. Other options implemented by some organisations have included internal events and fundraising to coincide with landmark dates.

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking professional and legal advice. Please refer to the full General Notices on our website.

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Liz Bradley

Liz Bradley
Solicitor

E: lbradley@clarkslegal.com
T: 0118 960 4638
M: 077 757 42501