Managing climate activism and protected beliefs in the workplace

How should businesses deal with employees who have strongly held environmental views? Catriona Aldridge and Val Dougan report

Getty Images

Climate activism is not new but for some employers it is becoming a new workplace issue. How should an employer that is committed to reducing the business’s impact on the environment deal with challenges to their approach from activist employees – or, at the other end of the spectrum, climate sceptics?

This can be a complex matter and involves cultural and legal factors. Many organisations actively promote their environmental, social and governance (ESG) credentials and encourage staff to speak up when they have concerns via workplace reporting procedures. If the organisation tries to restrict or suppress employees who actively disagree with the employer’s climate change strategy, it is likely to undermine the green messaging.

Businesses’ responses will vary depending on the precise issue and the way in which employees have raised it. There is a difference between an internal campaigning group sharing measured, constructive views about positive change, and protests that disrupt commercial operations or pose reputational risk.

At an individual level, an employee may raise a grievance about their employer’s approach to a particular issue such as carbon emissions. Where an employee raises concerns with the organisation about environmental damage that they believe to be true, one issue to consider is whistleblowing and whether they may be making a protected disclosure. 

Conduct issues may surface if the choices an employee makes about the way they live their life conflicts with their employer’s processes. The blurring of the boundaries between personal and professional life can also become problematic if an employee posts comments on social media that are critical of the business’s approach to climate change.

There are, of course, benefits in engaging with employees on climate change. A company’s climate change track record and stance can impact employee attraction and retention, particularly in relation to younger generations. However, when workers cross the line into perceived misconduct because of their strongly held beliefs, employers should pause to consider the legal risks before they take disciplinary action. This is particularly the case as environmental beliefs may amount to a protected belief under the Equality Act 2010, which gives the employee protection from discrimination because of that protected belief. 

There are two main aspects to consider here when assessing the risk of a claim for protected belief discrimination: 

Step 1: Does the belief amount to a protected belief under the Equality Act 2010? 

To qualify, the belief must:

  • be a genuinely held belief;
  • be a belief not an opinion;
  • be a belief as to a weighty and substantial aspect of human life and behaviour;
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

Recent cases on the issue of protected beliefs (mainly centring around gender-critical beliefs) have emphasised the importance of an employee’s right to freedom of expression. In future these developments may extend to other beliefs, such as climate scepticism.

Step 2: If so, is the conduct in question closely connected to their protected belief?

This involves consideration of whether there is a close connection between the conduct and the belief and whether the conduct is objectionable, followed by a proportionality assessment. In practice, this means employers must conduct a balancing exercise, taking into account the employee’s right to express their belief and the employer’s objective in taking, for example, disciplinary action. 

In carrying out this balancing exercise, businesses should look at the tone and the content of what the employee has said or done, the employee’s understanding of the likely audience, how this affected the rights of others and the ability of the employer to run its business.

In most cases, employers will want to engage with employee activists and harness their passion in a constructive manner in the workplace. 

The fact that an activist expresses a view that may be offensive to others is part of freedom of expression. The question then becomes how they express that view and whether they do it in an objectionable way. 

The organisation’s response will ultimately depend on company culture and attitudes towards ESG. If an employer promotes ESG as part of their values, then adopting a restrictive approach towards what employees can say or do about climate change, and other ESG-related matters, may do more harm than good. 

Catriona Aldridge is a partner and Val Dougan a professional support lawyer in CMS’s employment team