On Friday 20 September 2019, millions of employees across the world were invited by climate activist Greta Thunberg to strike to promote immediate action on climate change. The strike represents an extension of the ‘school strikes’ that have been organised by young people over the past few months into the world of work, with the intention that the adverse economic impact caused by the strikes would kick governments into action.
The Tokyo Metropolitan Government is aiming to reduce emissions by 30 percent from 2000 levels by 2030, but the 2,800 students who recently took part in a strike have declared that this is not enough. Further strikes are therefore becoming more likely as awareness of the issue increases across Japan.

Is a Global Climate Strike lawful?

Whilst many employers may support action against climate change, the strikes, at their best, can reduce workplace productivity, and at their worst, may be unlawful. The first question an employer can ask is ‘Do employees have a ‘right to strike’?’ In the UK, employees do not have this right, and if they withdraw their labour at a time when they are contractually required to work, they are acting unlawfully.

For any industrial action to be lawful, a Trade Union must comply with a series of statutory requirements including notice periods and a balloting process. Informal or short-notice walkouts may not meet the legal requirements if the ballot has not been held in accordance with the rules. So whilst many unions are in support of the Global Climate Strike, they cannot call one as no trade dispute exists and the notice period is too short. If they were to call a strike, the unions would be liable for financial penalties of up to £250,000.

Without any specific authorisation, the strike is therefore an unauthorised absence from work. In the UK, the legal consequence of unauthorised absences is misconduct, which can result in disciplinary action. In every jurisdiction, employers should consider reputational issues before responding – it may be reasonable to withhold pay rather than taking any action, and in making any decision there should always be a consideration of the company’s approach to corporate social responsibility.

Can an employee take annual leave to strike?

In the UK generally, employees are free to take leave when they want, however they should obtain prior approval before doing so. In the context of an informal and short-notice strike, obtaining prior consent may not be possible, or it could place a burden on employers when multiple employees request the same day off. Employers can always reject leave requests if their business would be overly affected, but again should pay due attention to the impact this would have for reputation and social responsibility.

What if employers want to support the Global Climate Strike?

Environmental policy is increasingly becoming important to businesses. In the UK, 32 creative agencies have signed a letter encouraging employees to ‘Create and Strike’ and committed to giving them time off. If so, employers must be aware that employees not striking must not be treated less favourably. Employers may also want to implement or change internal policies, but they must always do so in accordance with the law and in some cases this may require consultation with employees.

It is a risk for employees to strike without permission, and equally a burden for employers. Working with employees and planning internal climate initiatives as an alternative to strikes may be a better a solution.

For further information on the steps that employers can take to guard against climate action, please contact Yoko Nakada on yoko.nakada@lewissilkin.com and also see Lewis Silkin’s article here.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
The information and any commentary on the law contained in this bulletin is provided free of charge for information purposes only. No responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Lewis Silkin LLP or Centre People Appointments. The information and commentary does not, and is not intended to, amount to legal advice and is not intended to be relied upon. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not rely on the information or comments in this bulletin.

This information is supplied by Lewis Silkin LLP www.lewissilkin.comm

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