This article explores how the climate emergency may shape future employment law and practice and looks at some early developments and trends.
The need for change
The commencement of COP26 has made clear that much greater change is required to combat the climate emergency. This will drive change across the world and force a more sustainable approach to business.
How the consequences of climate change may impact the world of work
Some organisations will need to assess the locations from which they operate. The Union of Concerned Scientists has warned that, in 30 years’ time, nearly 60% of outdoor workers in the US could experience at least one week each year when it is too dangerous to work.
Locations at lower risk of extreme temperatures will also experience gradually increasing heat, leaving many indoor workplaces ill-equipped to cope with the hotter weather. There is no maximum temperature above which it is too hot to work in the UK, but the Management of Health and Safety at Work Regulations 1999 require employers to make a suitable assessment of health and safety risks and to act where necessary and practicable. It is a criminal offence for employers not to protect workers from risks to their health and safety.
Air conditioning (a significant contributor to greenhouse gases in its own right) is absent in many British workplaces. Designing buildings to use less energy for heating and cooling will no doubt be an increased feature of workplace design in the future. More immediately, employers grappling with the new normal of hybrid working for office-based workers are starting to consider the issue of sustainability. Is homeworking better for emissions when you remove the commute? Or is green commuting to a green office better than us all individually heating or cooling our homes?
Employers looking ahead will want to assess the risk of places in which they operate to rising sea levels. A recent report by Nestpick assesses Bangkok, Ho Chi Minh City and Amsterdam as being the three cities most at risk, with Cardiff at sixth, the only British city in the top 20 (London is 22nd).
Reducing emissions, employment law and practice
The second part of an employer’s environmental strategy will be to reduce their environmental impact, in particular to reduce the greenhouse gas emissions associated with their activities and the activities of their supply chain.
How employment law is adapting
To date, there are few employment laws requiring organisations to take account of the climate emergency. This may change in future. New laws in France oblige employers to inform and consult with their Social and Economic Committees on the environmental implications of business decisions affecting the workforce. How long before we see similar consultation requirements in other jurisdictions?
Change may also come from the increasing political influence of “Green” party politics. This could have a significant impact on employment law because “Green” parties tend to promote employment laws that involve increased rights for workers and a greater role for trade unions.
A notable legal development will come with the EU directive 2019/1937 on the protection of persons who report breaches of Union law (the Whistleblower Protection Directive) which EU member states must enact into domestic law by the end of 2021. The UK has had similar laws for over 20 years. The Whistleblower Protection Directive protects employees and other stakeholders who disclose suspected breaches of EU environmental laws.
The UK Employment Appeal Tribunal (EAT) ruled in 2010 that belief in climate change was potentially protected under the UK equality laws which prohibit discrimination on the grounds of religion or belief. This ruling gives important protection to employees who claim that they have been disadvantaged at work on account of their commitment to addressing climate change.
Stakeholder pressure is increasing, including from the workforce
Arguably the biggest driver of change is pressure from stakeholders, including the workforce.
Customers are, to an increasing extent, taking environmental impact into account in making purchasing decisions. Social media means that information and opinions can be disseminated widely and quickly from concerned parties. Prospective clients request detail about an organisation’s environmental policies and impact in procurement exercises.
Environmental credentials more and more influence someone’s choice of employer. If employers are to attract and retain the best people then they will be unable to ignore this. A recent Deloitte survey revealed that 49% of Gen Z respondents and 44% of Millennials claimed to have made choices about their work or the organisations they would work for based on personal ethics.
Trade unions are lobbying governments and employers to do more to meet climate targets. The UK TUC has published a report warning about the impact on jobs if companies fail to meet climate goals, with jobs being moved overseas to meet company targets.
How employment practices are changing
Employers are already taking steps to encourage behaviours which reduce carbon emissions. The aftermath of the Covid pandemic is presenting opportunities to retain some of the changes forced upon employers by the pandemic. For example, companies are exploring more cycling to work, less business travel by plane and more homeworking (although see above on environmental impact of homeworking).
We are already seeing employers looking to adapt employee benefit and expenses strategies to promote their environmental credentials, attract and retain employees motivated by action in this area and take advantage of tax efficiency schemes for non-cash benefits such as cycle-to-work schemes, e-vehicle schemes and workplace charging points.
In future, we may see more paid time off work to engage in activities to address the climate emergency. Employers may make training on the climate emergency mandatory, as they often do with training on issues such as diversity and inclusion.
The climate emergency elicits very strong views. The BBC recently reported that nearly 60% of young people said that they felt very worried or extremely worried about climate change and more than 45% of those questioned said feelings about climate change affected their daily lives.
Employers may find themselves at the forefront of changing attitudes and may need to manage any resulting conflict between employees. Employees may want to speak out at work about a variety of societal, political and environmental issues. If their employer has taken a particular commercial stance on the environment then employees may feel more empowered to voice climate-related opinions in the workplace.
How long before certain actions which are lawful and generally uncontroversial become socially unacceptable – for example long-haul holidays or commuting in a polluting vehicle?
Will employers start regulating employee behaviour out of work? Staff rules often provide for disciplinary action if an employee has been guilty of conduct outside work which might damage the employer’s reputation. Could that extend to behaviour that contributes to global warming or is in conflict with an organisation’s environmental strategy?
In September 2019 millions of employees across the world were invited by climate activist Greta Thunberg to strike to promote immediate action on climate change. In the UK, an employee joining such action would be taking unofficial industrial action which would amount to an unauthorised absence liable to disciplinary action, but many employers took a supportive stance with some giving staff time off to take part. This type of organised protest may be an increasing feature of the years ahead.
Conclusion – climate as the biggest driver of change?
Employers can be expected to adopt employment policies that are aligned to their climate goals, driven by workforce pressure and the need to attract and retain employees in a world where staff are demanding more urgent action on climate change.
The climate emergency therefore promises to represent an increased priority for employers in the years ahead whether adapting to the consequences of climate change or taking steps to reduce greenhouse gas emissions. The world of work is changing profoundly and rapidly, as various drivers of change come together. Climate change is, arguably, the most significant driver of change of all.