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.
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 active 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’ (eg 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 organizations 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 office has been committed;
- that any legal obligations 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 organization promoting climate-aligned legal drafting) refer to conduct damaging the environment which is not part of a reasonable working life in their 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?