Many employees want to participate in the Global Climate Strike. This is called by the organisation which was born out of the recent string of strikes held by students protesting against inaction over climate issues. The group has asked employees to walk out of their workplaces on 20 and 27 September (see https://globalclimatestrike.net/).
Some companies are accepting of such activism and are even in some cases encouraging it, seeing it as supportive of their brand‘s values and of appeal to their customers. For example, outdoor clothing company Patagonia said it would “actively encourage” its employees to take part, providing bail for any workers arrested during the actions, as part of a long-standing company policy. People Management has reported that the cosmetics company Lush told them that it was “considering how [it] can get involved with the climate strikes as a business”.
Many others, however, are not so keen and may want to take action against employees who disobey instructions not to take part. This article examines whether there would be any protection for employees if they are disciplined or prevented from attending by way of unfair dismissal, or whether detriment claims for discrimination on the grounds of religion or belief could succeed.
The curiosity is that this is not a mainstream and traditional trade union activity but some unions outside of the UK are encouraging their members to join the strikes. In the UK, the Union of College and University Lecturers (the UCU) tabled a motion at the TUC Congress for a half an hour “solidarity climate stoppage”. I consider first whether this could be a lawful strike and then whether there is any protection for employees on the grounds of religion and belief. I then give some pointers.
Trade dispute
Taking a day off without permission would normally be a disciplinary matter for the employer but strikes and other industrial action have some immunity. The first question is what is a strike? There have been several decisions on whether a one-person walk–out counts. By section 246 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) a strike is defined as “a concerted stoppage of work”, although there is a more specific definition for the purposes of statutory continuity. A strike need not last a whole day (Connex South East Ltd v RMT [1999] IRLR 249). The more recent EAT authority is against the notion of a one-person strike. Two, however, are company.
The second question is, if there is a strike, whether unions call for lawful industrial action in the UK in this respect? As is well known, a strike (or other industrial action) will only be lawful if it falls within the golden formula set out in section 244 of TULRCA. The closest it might get to an environmental strike would be “the physical conditions in which any workers are required to work” (section 244(1)(a)). This would have to be a dispute between workers and their employer so that a specific request would have to be made that the employer changes its environmental stance and that is not really what the action is about; rather it is a political protest or gesture aimed at governments. More likely is it that such a strike would be deemed political and thus not covered by the trade dispute formula (for example, Associated Newspapers Group v Flynn (1970) 10 KIR 17). If it was a strike, to be lawful it would have to comply with the balloting regime. If unlawful, anyone inducing the strike might be sued for damages and an injunction might be gained.
The third key point is that if there is protected industrial action, the employees may not be dismissed before twelve weeks of a strike. In all other cases, a dismissal of those on strike or participating in industrial action cannot result in an unfair dismissal claim. If it is not disruptive action, the protest may be viewed as involvement in trade union activities, and any detriment on this account would be unlawful.
Religion or belief
Another contestable issue is whether employees could claim detriment for manifesting a religion or belief if the employer refuses to allow them to take part, or disciplines them for taking part? In a case in which I appeared (unsuccessfully) for the employer, Grainger v Nicholson [2010] ICR 360, it was held that climate change can be a philosophical belief. Mr Nicholson was an early adopter in that he said that “mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to live our lives in a way that avoids catastrophe”. There is some limit on the scope of religion and belief. Such a view must be “a weighty and substantial aspect of human life and behaviour” to qualify and must have “a certain level of cogency, seriousness, cohesion and importance”.
To discriminate against someone on the basis of their religion or belief is unlawful under the terms of the Equality Act 2010 as these are protected characteristics. It would not, however, normally be a detriment if action were taken against someone for not working, although there may be some circumstances in which it would fall within this description.
Practical issues
What I have said so far assumes that employees simply take time off without permission. As a practical matter and to avoid dislocation or damaging of the brand, employers might allow employees to take annual leave or unpaid leave to take part in the strike. Shell have apparently decided to take this approach and Ikea said it was “exploring” the issue (see also Irish Times).
If an employer does not want its employees to take part it should make this clear and state that if employees do take time off they will be disciplined. This may of course generate negative publicity for the business especially if any disciplining of employees for taking part is seen to be heavy–handed and disproportionate. This may not be apparent until the day, when it will be clear what other companies are doing and how the press is reacting.
The reaction of the employer may differ depending on whether proper notice is given to the employer or employees just unofficially walk out. The employer is normally able to withhold pay from those who walk out.
It is necessary for employers to have a clear policy for dealing with those who join the protest. They should find out how many employees want to take part to ascertain the extent of the potential problem. It could be a good occasion for employers to commit to reviewing their own eco policies.
Another approach might be for employers to organise some alternative event or fundraising on the strike day, for employees to show their support while at work so as not to disrupt the work of the business.
