04 May 2022
The climate emergency will be a major concern to employees in the years ahead. This may lead to a rise in climate-related whistleblowing and future litigation.
UK whistleblowing law is drafted in a way that potentially gives broad protection to employees who voice climate concerns at work but there are many areas of uncertainty, as this article explains.
Stakeholder voice on green issues
The environment matters to most of us, but young people are profoundly concerned about the climate crisis, with the environment emerging as the top personal concern for Generation Z. Evidence suggests that younger employees are both increasingly activist and want to work in businesses that take social issues seriously.
Employers are also coming under increasing scrutiny from regulators, government, investors and other stakeholders. Earlier this year, the government introduced new requirements on publicly-quoted companies, large private companies and LLPs to disclose how they are addressing climate change in future annual reports. Meanwhile, the UK’s Competition and Markets Authority is cracking down on “greenwashing” (e.g. false statements about green credentials in product marketing) with a new Green Claims Code. In France, new laws oblige employers to inform and consult with their Social and Economic Committees on the environmental implications of business decisions affecting the workforce and, although similar legal obligations are not currently expected in the UK, the Trades Union Congress is encouraging a greater focus on environmental issues.
All of this suggests that companies will need to both talk and do more about climate issues and that they will need to be ready to be held accountable for their statements and actions.
UK whistleblowing law
UK law protects a whistleblower who makes a “protected disclosure” about specific types of wrongdoing, where they reasonably believe this to be in the public interest. This includes disclosing information tending to show (amongst other examples):
- that a criminal offence has been committed;
- that any legal obligation has not been complied with; or
- that “the environment has been, is being or is likely to be damaged.”
All kinds of environmental damage covered
Perhaps surprisingly, there is no statutory threshold for environmental damage. When the legislation was first conceived, parliament may have had in mind things like the pollution of water supplies or the type of scandal we saw with diesel car emissions. As actually drafted, any adverse impact on the environment appears to be sufficient. Pointing to the damage caused by practices such as business flights, maintaining a fossil fuel company car fleet, or not having proper recycling systems, could all potentially count as a protected disclosure under the wording of the legislation.
Interestingly, the Chancery Lane Project (an organisation promoting climate-aligned legal drafting) refer to conduct damaging the environment which is not part of a reasonable working life in their template environmental whistleblowing policy. As caselaw develops, possibly the courts will have to contrive a similar sort of threshold around the concept of environmental “damage” in the legislation so that it covers the sort of damage which is out of the ordinary or which could be objectively seen as wrongdoing. It is difficult to see, however, where the line would be drawn. What about, for example, an employer’s choice to manufacture with single use plastics for cost efficiency? Does that involve the sort of damage that should be covered by whistleblowing law?
Disclosures tending to show non-compliance with any legal obligation are also covered by UK whistleblowing law. As climate-related legal obligations increase, so too will the scope for employees to blow the whistle on a failure to meet those obligations. For example, greenwashing may breach consumer laws and is arguably more likely to be identified and called out by employees than by customers. That could be a disclosure about legal non-compliance that is protected by the law.
Broad scope of whistleblowing law
The environmental damage, or the non-compliance complained about, can be taking place inside or outside of the UK. It does not even need to be on the part of the employer — it can also relate to the actions of third parties such as suppliers, shareholders or a parent company. It could even, arguably, count as whistleblowing if an employee refers to climate damage caused by society more generally.
There can still be a protected disclosure even if the employer is well aware of the information being disclosed, and even if the employee doesn’t label what they are doing as whistleblowing at the time. Merely making an allegation or voicing a concern is not protected – there must be some kind of disclosure of information – but as long as some facts are conveyed then the test is likely to be met.
But is there a public interest?
Employees are protected only when making disclosures that they reasonably believe are in the public interest. Caselaw has established that there are two elements to this:
- whether the employee subjectively believed at the time that the disclosure was in the public interest; and
- if so, whether that belief was objectively reasonable.
There might be more than one reasonable view as to whether a particular disclosure was in the public interest, and the tribunal should not substitute its own view.
Climate damage almost inevitably impacts the public. There may, however, need to be a new spotlight on the public interest test in the climate context. Take, for example, an employee expressing evidence-backed concerns, through a whistleblowing procedure, that business class air travel disproportionately and unjustifiably damages the environment and should be prohibited under the employer’s policies. In today’s world, is it reasonable to regard that as a disclosure in the public interest? Even if some tribunals think not, will it become reasonable to regard it as a matter of public interest in a few years’ time as environmental consciousness shifts fast?
Treatment of climate activists
Under UK whistleblowing law, it is unlawful to dismiss an employee or subject them to a detriment for making a protected disclosure. This could be a fertile area for tricky whistleblowing cases where the employer says they dismissed or subjected the employee to a detriment not because they raised environmental concerns, but because of the manner in which they did so. Many climate protesters, faced with the life-threatening risks posed by climate change, are using radical civil disobedience and other extreme tactics to try and get their message heard. If employees use those tactics in the workplace, employers could find themselves in a dilemma. They may have grounds for taking disciplinary action, but their motivation will be scrutinised carefully - and taking action becomes loaded with legal risk if the employee is classed as a whistleblower.
Climate activists may also have other legal protections. In the 2010 Grainger v Nicholson case, the UK Employment Appeal Tribunal ruled that a belief in climate change, coupled with a belief that we are under a moral duty to address this, was potentially protected under the UK equality laws which prohibit discrimination on the grounds of religion or belief. This may well give additional protection to employees who claim that they have been disadvantaged at work because of their commitment to addressing climate change.
This is an area which is ripe for future litigation. Caselaw will be needed to settle many areas of uncertainty, including the difficult questions of what type of environmental damage can be called out in the public interest, whether the disclosure caused the employer to retaliate, and the difficult topic of when employees are protected if they act purely out of a cynical attempt to garner additional employment protections.
Practical steps for employers
There is no legal requirement to list all types of protected disclosure in your whistleblowing policy, so there is no need to cite environmental damage as an example if you do not wish to do so. That said, from a risk management perspective, it is worth checking that environmental damage could at least be covered by your definition of wrongdoing and that those responsible for your whistleblowing policy are aware that disclosures in this context can fall within the scope of UK whistleblowing law. This is especially the case if your organisation promotes itself as being environmentally conscious. It may also be worth considering if you have the internal capability to carry out investigations into disclosures about environmental damage if this becomes necessary.
Some employers may wish to take a different approach and positively encourage employees to speak up about climate issues. Such employers could consider expanding their whistleblowing policy, for example to encourage employees to call out any breaches of their own internal climate targets or conduct which damages the company’s reputation as an environmentally-conscious business, as recommended by the Chancery Lane Project (see above).
More generally, all employers will need to be ready to address the growing climate-related concerns of their workforce. They should expect their employees and other stakeholders to call out practices that damage the environment to an increasing extent in the years ahead. They should also be aware that UK whistleblowing law is currently drafted very broadly when it comes to climate-related whistleblowing and that it may give strong protection to those voicing environmental concerns at work.