What do employers and employees need to know about protests?
The Extinction Rebellion group called on activists and the general public to stage large-scale protests in London and other world capitals from 7 October 2019 with the aim of putting pressure on governments to take more definitive action on climate change.
As part of this, Extinction Rebellion asked the public to go on strike and/or take time off work to demonstrate with them. Looking at England and Wales, we consider some key employment law aspects of the planned action.
Protests and strike action
Extinction Rebellion called for workers to leave their desks and go out and protest.
Whilst most workers who respond to the call to action will likely use leave (see below), it is possible some may see this as a call to go on strike. In the UK, strike action in this context is unlikely to be lawful. This is because workers who go on strike, and therefore unilaterally deprive their employer of labour, may be in breach of their employment contract. If a strike is organised by a trade union, the union may be liable to the employer for inducing the breach of contract, unless specific steps have been followed to provide the union with immunity. This requires action taken in the 'contemplation or furtherance' of a trade union dispute, which seems very unlikely to apply here.
If workers breach their contracts by going on strike (and withdraw their services) the employer may have grounds to discipline (and possibly dismiss) them for a fundamental breach of contract.
Workers and employees have no right to take paid or unpaid leave whenever they want - it is subject to an employer's reasonable consent. An employer can reject a leave request if it considers, for example, that the absence would interfere with the operation of its business.
Also, if a worker has used up all of their paid leave entitlement they can, provided their employer consents, request unpaid leave.
If a worker takes unauthorised absence then an employer has the option to withhold pay for the period of unauthorised absence and to consider what disciplinary action is appropriate to take against the employee for misconduct. Employers facing this situation should consult their staff handbook and policies, where available, for guidance.
Could the protests invoke discrimination protection?
Under the Equality Act 2010 religion or belief is one of the defined protected characteristics upon which individuals are protected from discrimination. 'Religion or belief' includes philosophical belief, which means that this characteristic extends beyond the most obvious examples of organised religion.
Case law has provided that a belief in climate change is capable of amounting to a philosophical belief, and a tribunal case due to be heard in October 2019 is set to consider whether ethical veganism, rather than dietary veganism, is a philosophical belief afforded protection under the Act. A very recent case found that vegetarianism did not meet the requirements of a philosophical belief, because it did not have a similar status or cogency to religious beliefs.
Employers should therefore be mindful when dealing with any worker who wants to attend the Extinction Rebellion event, or any similar event, that any subsequent disciplinary action taken against the worker is not interpreted as discriminatory.
Arrest and criminal records
It is worth noting that Extinction Rebellion's own website contains sections giving information about protesters' rights and what action is lawful and unlawful, and notes that certain action could result in arrest and even imprisonment.
Imprisonment and a criminal record will likely have employment consequences. If a worker is arrested and charged with an offence, employers will need to be careful how they respond. Arrest, being charged or being subject to police investigation can be grounds for disciplinary action, for example, where any specific allegation may impact on the employee's suitability to perform their role or may represent a significant reputational risk to the employer.
Where a worker receives a criminal record, it may trigger a statutory restriction on that individual being employed in certain roles.
If a worker is given a prison sentence, this can have the effect of terminating the contract by operation of the law, by way of 'frustration' of the employment contract because the worker is prohibited from performing their job. In any event, it would likely be a fundamental breach, again because the employee (by their own conduct) has ceased to be in a position to provide their services.
Whilst most employers and their workers will no doubt have little need to concern themselves with the potential employment law implications of taking part in the Extinction Rebellion action, it is worth considering the potential impact.
The surge in climate change activism is likely to continue. In turn, this will likely draw in more members of the public, which will mean an increase in secondary issues such as the impact on the employment relationship. It is also not inconceivable that adherence to environmental activism might establish itself as a personal belief for discrimination law purposes, meaning employers will need to consider how their disciplinary processes are applied to employees who take part in environmental action and how best to prevent discrimination claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.