From 31 October until 12 November 2021, countries are attending the United Nations COP26 summit in Glasgow, bringing the climate crisis back into the forefront of international discourse following another year of extreme weather events. The UK has also seen continual campaigns from protest groups such as Extinction Rebellion, who organise demonstrations to challenge the inadequacy of current measures to address the crisis.

Conversation about the climate crisis will inevitably be had in the workplace, as many workers will express their concerns and beliefs at work. Workers may even raise concerns about the impact their employer’s practices have on the environment. In the event they are mistreated or victimised for expressing views at work on environmental issues, it is beneficial for workers to be aware of the legal protections available to them.

Protected Belief

Under the Equality Act 2010 employers cannot unlawfully discriminate against a worker because of the worker’s philosophical belief, if that belief is protected. The key case which set out the guidance on whether a belief is protected was Grainger Plc v Nicholson, in which Bindmans LLP represented the worker.

The worker in that case, Mr Nicholson, asserted the philosophical belief that mankind is heading towards climate catastrophe; that we are all under a moral obligation to lead our lives in a manner that mitigates or avoids this catastrophe for the benefit of future generations. This philosophical belief also required the worker to persuade others that they also had this moral obligation.

The Employment Appeal Tribunal upheld that this belief was capable of being protected, therefore finding it was prohibited for an employer to unlawfully discriminate against a worker for holding such a belief.

This ruling is encouraging for workers who are passionate and concerned about the climate crisis and who wish to express their views in the workplace without fear of discrimination. The appeal tribunal set out the criteria for a belief to be protected under the Equality Act 2010:

• It must be genuinely held
• It must not be an opinion or viewpoint, based on the present state of information available
• It must be about a weighty and substantial aspect of human life and behaviour
• It must have a certain level of cogency, seriousness, cohesion and importance
• It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

Importantly, the appeal tribunal held that a belief is not required to be shared by others to enjoy legal protection. It is worth noting that when the case was brought in 2009, the worker’s belief in climate catastrophe and an arising moral obligation was not as widely accepted as it is today. The belief in climate catastrophe, demanding we change how we live and persuading others to change how they live, may even have been considered quite extreme. The fact that this belief is now widely accepted highlights the value in the principle that unpopular beliefs can still be protected under law – sound and worthy beliefs often take time to gain believers.

Protected Disclosure Detriment

Workers who raise concerns about the impact of their employer’s practices on the environment may also benefit from whistleblowing protection. If a worker makes a qualifying protected disclosure, it is unlawful for their employer to subject them to detriment because of it.  

Broadly, a protected disclosure is made when a worker discloses information to their employer (or other prescribed persons) which they reasonably believe shows:

• A criminal offence
• A breach of legal obligation
• A miscarriage of justice
• Danger to the health and safety of any individual
• Damage to the environment
• The deliberate concealing of information about any of the above

The worker may believe that one of the above has happened, is happening or is likely to happen in future. The worker must also reasonably believe that the disclosure is in the public interest.

Therefore, a worker raising a concern about their employer’s practices damaging the environment may enjoy whistleblowing protections under the law. If an employer mistreats them for making such a disclosure, the worker may have grounds to lodge a claim against the employer in the Employment Tribunal.

Tina Din, Associate in our Employment and Professional Discipline team, comments:

From an employer’s perspective, it is imperative to address any complaints or grievances raised by workers in a reasonable and well thought out manner. Adopting the Advisory, Conciliation and Arbitration Service’s (ACAS) best practice when hearing informal or formal grievances concerning their impact on climate change and/or policies adopted that may affect climate change should not be dismissed as irrelevant. As set out above, these beliefs have the potential for protection under the Equality Act 2010 with potentially serious implications.

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