Striking a Balance – Activism and the Workplace

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.