UK: People And Culture Group Discussion: Climate Change & The Workplace

Climate Change and the Workplace

Climate change is a topic which is of huge importance to us all, but recent data shows that it is of particular importance to Millennials and Gen Z, who are pushing for tangible action to combat it; not just from politicians and government, but also from their employers.

It is also increasingly common for staff to look to their employers to align with, and demonstrate best practice in relation to, their personal values and beliefs; including on issues such as combatting climate change.

In the UK, around 70% of employees say that they are anxious about the future of the planet and society. Around 77% say that companies should be taking responsibility for their environmental impact and around 66% say that they want to work for a company that is having a positive impact.

However, around 68% of employees also say that efforts by businesses to tackle environmental and societal challenges do not go far enough. And around 45% say they would consider resigning if their employer's values don't align with their own, even in these difficult economic times; 35% say they have already resigned for this reason (this is known as "conscious quitting").

Employers are consequently finding that many of their staff are proactively raising climate concerns in the workplace, and increasingly asking them what steps they are taking to help combat it and minimise their organisation's impact on the environment. Clearly, the question of whether or not an employer is doing "enough" in this respect will have a significant impact on the organisation's ability to attract and retain staff, and also on its reputation more broadly.

In this context, in this session we looked at:

1. the legal position (from an employment law perspective) on climate and environment related whistleblowing and philosophical belief discrimination in the workplace; and
2. the practical steps employers can take to ensure that they not only rise to the challenge of helping to combat climate change, but also seek to lead the way in best practice.

In respect of the latter, we had a group discussion about:

1. what, specifically, staff are demanding from their employers;
2. how employers can respond to those demands; and
3. what else employers can do.

1. What is the legal position from an employment law perspective?

i. Employment law protects those who "blow the whistle" about climate change and environmental issues at work from being subjected to any form of detriment or dismissal by their employer.

If an employee discloses information to their employer, which tends to show that the environment has been, is being, or is likely to be damaged, this can amount to a "protected disclosure" or "whistleblowing" under the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998.

The definition of "environmental damage" is incredibly broad, and could include a variety of issues like:

• Environmental malpractice, such as pollution of air or water supplies.
• Any negative impact on, or damage to, the environment caused by an employer's decisions or policies on (for example):
  • business travel, or
  • commuting to work, or
  • recycling systems (or a lack thereof).

In addition, disclosures of issues like alleged "greenwashing", or failure to comply with environmental rules or regulations, may equally qualify as a protected disclosure under another strand of whistleblowing (i.e., failure to comply with a legal obligation).

If an employee has made a protected disclosure about an environmental issue to their employer, they are protected from being subjected to any detriment or dismissed by their employer as a result of their disclosure. If they are then subjected to such detriment or dismissed, they will be entitled to compensation.

Establishing causation (i.e., that any detriment or dismissal was because of the protected disclosure) is key, and can often be a point of contention. For example, if an employee voices concerns about, or dissatisfaction with, an employer's environmental practices in a way which is particularly disproportionate or unreasonable (for example, through significant disruption or protest or civil disobedience), the employer may wish to take disciplinary action against the employee in respect of how they are voicing their concern. Such disciplinary action may be lawful, if it is being taken in respect of how the concern has been raised, rather than in respect of the fact of the raising of the concern itself (though this can be a fine line to tread).

ii. Employment law also protects those who hold "protected beliefs" about climate change and the environment from being discriminated against at work or dismissed by their employer as a result of those beliefs.

"Philosophical beliefs" are potentially a protected characteristic under the Equality Act 2010, and employees holding such beliefs are protected from being treated less favourably (i.e., discriminated against) or dismissed because of them.

In order to fall within the protections of the Equality Act 2010, a philosophical belief must be a "protected belief", and must satisfy the 5-stage test known as the Grainger Criteria. These criteria are that:

1. the belief must be genuinely held; and
2. it must be a belief, and not an opinion or viewpoint, based on the present state of information available; and
3. it must be a belief as to a weighty and substantial aspect of human life; and
4. it must attain a certain level of cogency, seriousness, cohesion and importance; and
5. it must be worthy of respect in a democratic society, compatible with human dignity, and not conflict with the fundamental rights of others.

In the Grainger v Nicholson case, a court decided that a belief in man-made climate change, and the alleged moral obligation to act to mitigate against it, was capable (if genuinely held) of being a protected philosophical belief. Similarly, in the cases of Casamitjana Costa v League Against Cruel Sports and Reilly v RT Management Bridgeton Ltd, the courts found that ethical veganism met the 5-stage Grainger test, and was capable of being a protected philosophical belief. It is, however, worth noting that there are other cases which have found that in some instances veganism is not a protected belief - particularly where it also includes a belief which impinges significantly on the rights of others and/or is unlawful (e.g., a belief in the right to trespass on private property and act in contravention of the law to expose and relieve animal suffering (Miles v Royal Veterinary College)).

In any event, employers should not jump to conclusions too quickly about what may (or may not) be a protected philosophical belief, and should be mindful that many environmental and climate-change related beliefs are capable of being protected.

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