Climate emergency, work and employment law

How might the climate emergency shape future employment law and practice? We explore some early developments and trends.

The need for change

The UN’s Intergovernmental Panel on Climate Change published a report in August 2021 on the urgency of the task of combatting the effect of human activity on the climate. António Gutteres, the UN Secretary General, described the report as ‘a code red for humanity’.

The climate emergency will drive change across the world and force a more sustainable approach to business. The year 2021 has seen a succession of extreme climate events, with record snowfall in Madrid and Texas; exceptional temperatures in the Mediterranean countries, the Pacific North West and Russia; and flooding in New York, Germany, China and London. The World Meteorological Organisation has reported a five-fold increase in weather-related disasters over the last fifty years.

Eyes will turn, once again, to steps being taken to address the climate emergency when the COP26 conference takes place in Glasgow in November this year.

Organisations will need to react to the climate emergency in two key types of way:

• they will need to take steps to prepare for, and respond to, the consequences of climate change including increasing temperatures, rising sea-levels and shock weather events such as extreme temperatures and flooding; and
• they will need to take steps to reduce greenhouse gas emissions to mitigate future global warming.

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 threat from rising temperatures to workplaces in countries such as the US has led to the Union of Concerned Scientists to warn 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.

It is not only extreme heat which promises to impact on employers in the years ahead. Locations at lower risk of extreme temperatures will nonetheless 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. The UK’s enforcement body, the Health and Safety Executive, makes it clear that workplace temperature is a potential hazard that employers should address to meet their legal obligations. Employers may face personal injury claims from staff who have suffered from a negligent failure to protect them from risks.

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 ?

Those who rely on goods and services from locations at risk from dangerous levels of heat and other extreme weather events will need to assess the resilience of their supply chain.

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).

In some sectors, such as agriculture or forestry, climate change will directly affect work. Growing certain produce which has thrived for millennia in certain locations will no longer be viable, but may be better suited in future years to new locations.

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.

There are several drivers influencing employers in their development and implementation of environmental sustainability strategies. There is the push and the pull.

As far as the ‘push’ is concerned, for many organisations, reducing carbon emissions will be a priority because it is the responsible thing to do and because it makes good business sense.

The ‘pull’ is coming, and will only increase, from various directions. It is coming from government through legislation and it is coming from numerous stakeholders including employees, trade unions, customers and investors.

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. Public concern about the climate emergency is driving the advance of Green political parties across the world, while other traditional parties may be adopting more green policies. This could have profound repercussions for employment law because, as explored in depth in this research piece, Green parties tend to promote employment laws that involve increased rights for workers and a greater role for trade unions. In other words, increased Green party influence in governments could pave the way for radical employment law reform across a whole range of issues from family friendly policies to minimum wages.

A notable legal development will come with the coming into force of 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 current trend is for countries to extend the scope of their implementing legislation so that it covers breaches of domestic law or issues of public interest (such as in Sweden, for example, where the proposed implementing legislation covers disclosures about any matters of general interest). The Directive will result in a new EU-wide framework for raising concerns about an organisation’s environmental practices, with organisations being obliged to investigate concerns raised and provide feedback to the whistleblower.

The UK Employment Appeal Tribunal (EAT) ruled in Grainger v Nicholson (2010) that belief in climate change was potentially protected under the UK equality laws which prohibit discrimination on the grounds of religion or belief. Mr Nicholson claimed that he had been selected for redundancy on account of these beliefs. To be covered as a protected belief the EAT decided that:

(i) the belief must be genuinely held;

(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available;

(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The EAT agreed that Mr Nicholson’s climate change beliefs could satisfy this test. 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 increasingly demand detail about an organisation’s environmental policies and impact in procurement exercises.

Investors look to a company’s environmental credentials (including the environmental impact of its supply chain) in deciding where to put their money. An organisation’s ESG (Environmental, Social and Governance) performance is now regularly scrutinised before investment decisions are made. Rating agencies now report on ESG criteria. Various accreditation organisations have appeared to validate businesses’ credentials, and certified B Corps are increasing in number.

The UK government is currently consulting on requiring all publicly-quoted companies, large private companies and Limited Liability Partnerships (LLPs) to comply with climate-related financial disclosure obligations. Premium listed companies are already required to comply with the recommendations of the UK’s Task Force on Climate-related Financial Disclosures, or to explain their lack of compliance. We are beginning to see performance against environmental targets featuring in executive pay decisions, a trend which is only likely to grow.

Overstating your green credentials is, however, risky. The UK’s Competition and Markets Authority is cracking down on ‘greenwashing’ with a new Green Claims Code. False or exaggerated claims are likely to undermine employee trust and make it harder to recruit talent. In extreme cases, it could even lead to whistleblowing or unfair constructive dismissal claims by employees who have joined or stayed with an employer on account of their sustainability claims or employees who complain that their organisation is not living up to its environmental claims.

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 ‘build back better’ by retaining some of the climate-positive 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).

The Chancery Lane Project is an interesting initiative aimed at encouraging climate-aligned legal drafting. The project has created a variety of employment-related clauses, including clauses for a Net Zero Employment Handbook and Climate Garden Leave.

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. Another target is environmentally damaging uniforms.

Italy has introduced laws requiring large companies to engage ‘mobility managers’ whose responsibilities now include reducing use of private cars for commuting to work and promoting sustainable mobility. As employers become increasingly conscious of their carbon footprint, might we even see recruitment decisions influenced by the environmental impact of a potential recruit’s commute?

The climate emergency elicits very strong views and, like many issues these days, limited tolerance for opposing 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. Many staff will have demanding expectations of their employer and colleagues.

Employers may find themselves at the forefront of changing attitudes and on the firing line in managing any resulting conflict between employees. Employees may increasingly want to speak out at work about a variety of societal, political and environmental issues. If you have taken a particular commercial stance on the environment then employees may feel more empowered to voice climate-related opinions in the workplace, potentially leading to conflict.

How long before certain actions which are lawful and generally uncontroversial become, nonetheless, socially unacceptable, for example long-haul holidays or commuting in a polluting vehicle? What about consuming meat or dairy products, with livestock farming contributing significantly to greenhouse gas emissions?

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. Might that soon extend to regulating behaviour outside work 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.

The view from other places.

Brazil:

In Brazil, environmental preservation is the key to viable business. Agribusiness represents a business worth USD 8.7 billion in 2020 exports, but it is also responsible for deforestation and water consumption. Years of drought and poor long-term policies have, again, plunged Brazil into an energy crisis as 70% of their electricity comes from hydroelectric power plants. Energy efficiency and renewable sources shall be key to industrial production and the consequent recovery of employment levels after the decline caused by the pandemics.

Written by José Carlos Wahle, Veirano Advogados

Chile:

Currently there are no employment laws requiring organisations to take account of the climate emergency. A bill on Climate Change in Chile is being discussed in the Congress, which would, among other things, set a carbon neutrality goal for 2050. In addition, within the drafting of the new Chilean Constitution, the Constituent Assembly wants to declare a climate emergency in Chile. However, neither makes specific mention of the obligations that would be imposed on employers and/or employees, if any, relation to this.

Written by Marcela Salazar, Munita & Olavarría

Colombia:

The Ministry of Labour and ILO signed a Pledge for Green Jobs and Just Transition in Colombia, a project that will end in 2021 and that seeks to define strategies and prepare the country’s workforce for the challenges of climate change. There is not a national strategy in Colombia yet, but the reforms’ foundations are ready, since considerations related to just transition and decent work have been included in several multi-sectoral policy instruments, including the National Development Plan. At the same time, a bill which would encourage the generation of green jobs is being discussed in the Congress. Its purpose is the creation of certification by the Ministry of Labour allowing employers to obtain incentives for the creation of these type of labour alternatives.

Written by Daniela Caicedo, Brigard Urrutia

Denmark:

In Denmark, we have not yet seen action from the government through legislation requiring employers to take account of the climate emergency. However, the Danish Council on Climate Change has recommended the government to make a roadmap including sectoral strategies, such as in the agriculture and transport sectors, in order to achieve the 70% reduction target for Danish greenhouse gas emission before 2030.

Stakeholders, employees, investors, trade unions and trade associations have shown an increasing interest in how employers approach the climate emergency. Due to this awareness, employers are now more focused on how to reduce their carbon footprint and how to use energy more efficiently.

Trade associations in particular have taken part in helping employers to improve their climate efforts and apply pressure on the government. Recently, several trade associations have required that socio-economic impact assessments in response to decisions in the public sector (e.g. in new construction projects), should give more weight to climate effects.

Written by Christian K. Clasen, Norrbom Vinding

Belgium:

On 10 March 2021, the European Parliament adopted a Resolution on corporate due diligence and accountability and later this year the European Commission is expected to publish a proposal for a Directive on the topic. This initiative aims to implement principles of supply chain due diligence in relation to environmental issues as well as human rights.

Written by: Chris Engels, Claeys & Engels

Finland:

There are no exact mandatory provisions in Finnish employment law legislation to tackle the climate crisis. However, several Finnish employers voluntarily commit to various climate goals in attempt to reduce their carbon footprint and use natural resources sustainably. This is often part of broader environmental responsibility plans of Finnish companies, but these may realize even in employee benefits programs. From the beginning of 2021, government introduced tax benefits for employer-provided bicycles that may further attract Finnish employers to provide their employees with company bikes.

Written by Theo Pynttäri, Dittmar & Indrenius

France:

Two years ago, a new law was passed to introduce a principle according to which all companies must now be managed with a social interest in mind. They are no longer ruled by the sole will of the shareholders, but must take into consideration the social and environmental issues related to their activity. The aim of the law was to force top management to incorporate the social and environmental impact of their actions into consideration when making strategic decisions. From now on (law of 22 August 2021), the social and economic committee will be responsible for controlling how the head of a company integrates these strategic considerations into its decisions.

Written by: Arnaud Teissier, Capstan Avocats

Germany:

The Green party achieved a strong result in the federal elections held on 26 September 2021 and will very likely be part of the new government. As a result, Green party politics are expected to have a significantly increased influence on German climate and economic policy decisions in the upcoming years, also directly or indirectly affecting employment law matters. The climate crisis has already triggered major industry transformations, for example, regarding car manufacturing (phasing out combustion engines to focus on electric mobility) or the steel industry (implementing ‘green’ steelmaking by using clean hydrogen). These industries are being forced to restructure massively in order to survive, with a strong focus on training and qualification of employees.

Written by Jörn-Philipp Klimburg, Kliemt.HR Lawyers

Greece:

No law has been issued so far in Greece regarding climate change or connecting it with labour issues, although the implementation of climate change-related legislation is expected to be introduced in the near future. In the event of extreme weather conditions, general labour legislation regulating employers’ responsibility for employees’ health and safety applies. The employer must arrange work and its premises, as well as any accommodation, facilities and machinery or tools, in order to protect the employee’s life and health. The employer must take all the necessary measures to ensure that employees and third parties present in the workplace are not in any danger that may threaten their health or physical integrity and notify them regarding any other potential danger in the workplace. Within this framework, the employer should take all appropriate measures to ensure decent working conditions for employees. For example, there should be provision for work from home in in the event of heatwaves or heavy snowfall due to climate change to avoid exposure to extreme weather conditions. Lastly, during heavy snowfall in February 2021 in Athens, the Ministry of Labor and Social Affairs issued a circular for people who work as food couriers, stating they were not obliged to work in such harsh weather.

Written by Tasos Marmaras, KREMALIS LAW FIRM

Slovakia:

Slovakia already has legal regulation in force that directly mitigates the impacts of climate changes on employees’ working conditions. As an example, there is a law supporting employees’ right to suitable working conditions during extremely hot days. Employers are obliged to provide their employees with appropriate protective equipment, a suitable drinking regime, or other preventive measures.

As the climate change situation is still changing (not excluding Slovakia), currently there are few legislative attempts, which should introduce measures in the relevant areas in future. However, at present, their fate cannot be predicted.

Written by: Dajana Csongrádyová, NITSCHNEIDER & PARTNERS

Russia:

In Russia, climate change does not currently have specific effect on employment legislation and employer practices. Some climate-related guarantees and benefits do however, apply in Russia. For example, guarantees relating to increased salary, additional vacation time, etc. are provided for employees working in the Far North and similar regions with severe climate conditions. Extra statutory guarantees are also foreseen for employees working in specific climate zones (e.g. there is an enhanced wage coefficent for work in deserted, waterless, high-mountainous territories).

Additionally, sanitary requirements allow tfor reduction of working time in the event of high or cold temperatures in the indoor workplace (more than 26°C and less than 16-22°C). If the temperature is above 32.5°C or below 12°C, on-site employees cannot be in their workplace and the employer must formalise downtime. For outdoor work in hot or cold weather conditions beyond the limits described above, employers must provide regular breaks for cooling or warming.

Employers may, at their discretion or through negotiations with workers (trade unions), introduce additional guarantees for work in harsh or specific climate conditions and temperatures. Similarly, organisations can introduce their own sustainable consumption and environmental provisions to attract new customers and employees, who increasingly take this into consideration.

Written by: Margarita Egiazarova, ALRUD 

Ukraine:

Although the Ukrainian economy is based on agriculture, coal mining, metallurgy to a great extent, Ukrainian businesses are endeavouring to enhance decarbonisation processes, develop renewable energies and hydrogen industries and implement other ESG principles. These measures against climate change are taken in the framework of the European Green Deal, EU4Climate and other governmental and stakeholders’ initiatives. They positively affect the labour market by the creation of new workplaces and improvement of working conditions (for example, some energy companies are involving employees in new production facilities instead of working in the mines).

On the other hand, Ukrainian labour legislation does not directly oblige an employer to take account of the climate emergency by measures such as the assessment of health and safety risks in the event of climate-related threats to workplaces, prohibiting discrimination specifically on grounds of climate change beliefs, or compliance with reporting of climate-related financial information. However, there are some initiatives regarding occupational health and safety legislation updates, and the government may address some of these climate change issues when developing these updates.

Written by: Valeriya Bezpala, Vasil Kisil & Partners

Conclusion: climate as the biggest driver of change?

The type of work we are employed to do is changing rapidly. Various factors are driving this evolution not least technology. Many of the best brains are working on developments to address the impact of climate emergency and its causes. The Guardian has reported analysis showing that the UK’s green economy is now worth more than GBP 200bn; employs more than 1.2 million people; and is four times the size of the UK’s manufacturing sector, with further growth anticipated in the years ahead.

New jobs will also be created closer to home as greater attention is paid to the environmental credentials of an organisation’s supply chain. Environmental factors will play a role in decisions to reverse off-shoring of manufacturing, with supply chains and manufacturing plants moving closer to production and consumer.

Meanwhile, 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.