Employment law and climate change: the developing legal landscape

Employment law and climate change: the developing legal landscape

The nexus between employment law and climate change should be granted greater attention by employers, lawyers and HR professionals. Just as the climate crisis is vast and complex, its effects are being felt across the global workforce. When looking at climate change through the lens of employment law, we must recognise how it affects the individual worker at a base level, expanding outwards to influence entire industries. Employers must be alive to the risks and opportunities that climate change presents if they are to remain an employer of choice.

The just transition

Few employment laws in the UK require employers to take account of the climate crisis, but the regulatory landscape is shifting. At a global level, courts are starting to incorporate international standards (such as the United Nations Guiding Principles on Business and Human Rights) into the duty of care of businesses, drawing significant links between human rights and climate change. The people impact of climate change and sustainability practice is something that must be taken account of at board level within business. It is also of significant interest to HR professionals and legal advisers.

Crucially for workforces, we are at a stage where a just transition towards a green society has taken on increased political and societal significance. The term just transition refers to a framework which was developed to secure workers' rights and livelihoods within shifting economies, gaining momentum in recent years especially in the context of climate change. It aims to avoid trade-offs between the human right to work and the human right to a healthy environment.

In 'The Global Risks Report 2024', the World Economic Forum identified extreme weather events to be the top risk most likely to present a material crisis on a global scale in 2024, with AI-generated misinformation and disinformation and societal and/or political polarisation following in second and third place. This is a risk to industries and individual workers. As water levels rise and weather events become more extreme, the physical impact on employees, including on their livelihoods and health, will only expand. Some areas of work are likely to see a growth in recruitment, for example renewables, but other industries are facing unnerving job insecurity due to energy transitions and weather changes. Employers must stay mindful of these changes and boards should consider the effects on employment as it looks to address the wider just transition.

As climate change impacts people, it impacts the global workforce. In October 2021, the UN Human Rights Council recognised that access to a healthy and sustainable environment is a universal right. This is relevant when we consider how the climate crisis is likely to affect the health and safety landscape of workplaces. Experts writing for the European Respiratory Journal editorial last year advised that high temperatures and changing weather patterns are likely to exacerbate lung health problems, adding that the climate crisis and human health had become interlinked and "irreversible". Both the World Health Organisation and the Intergovernmental Panel on Climate Change (IPCC) have also recognised the serious risks to mental health and well-being that climate change poses, including a higher likelihood of anxiety, depression and grief. Employers have a duty of care to their employees, which covers both physical and mental health. As part of its wider duty of care and overall risk assessment, businesses spanning multiple locations are likely to consider the long-term future of offices which are more vulnerable to extreme weather events, including flooding or high temperatures. This is operationally significant, but ultimately extreme weather risk drills down to the livelihoods and wellbeing of individual staff.

Workforce risk

Employee demand with regards to climate and sustainability has presented a range of employment law issues for in-house legal teams and HR professionals. With a greater number of employees taking a more activist approach in this space, climate commitments are being scrutinised and employers are facing greater employment law risk.

In the UK, climate-related whistleblowing issues are emerging as employees have the legal right to 'blow the whistle' if they disclose information which shows, in their reasonable belief, that "the environment has been, is being or is likely to be damaged." Whistleblowing charity Protect found that only 36% of workers in the UK last year believed they could be protected under whistleblowing law if they raised environmental issues, but this number is expected to rise as awareness and interest in climate change grows. There is also a good basis in the UK for arguing that strong views on the environment may be protected under section 10 of the Equality Act 2010: Religion or Belief. This understanding was supported by the landmark EAT case Grainger v Nicholson in 2010. It is unclear whether a lack of belief in climate change could also be protected, but an argument could be made for this under the legislation. Instances of environmental whistleblowing are more likely in the UK as opposed to claims from employees of discrimination based on a belief in climate change. But employers should be aware of both risks as the legal landscape continues to develop.

Workforce engagement

Climate change also presents an opportunity for employers to get ahead of the curve when it comes to matters of sustainability and internal procedure. A key challenge for HR professionals in developing internal policies and practices is getting the workforce on board, particularly when that workforce will represent a range of views and personal circumstances. But if businesses are to realise their sustainability and climate-related ambitions they must effectively engage their employees.

Employers wishing to implement internal change regarding climate and sustainability can take various steps, including (i) considering greenhouse gas emissions as part of a travel/expenses policy, (ii) embedding climate change considerations such as training or incentives into employment contracts, or (iii) examine occupations pension scheme climate risk and responsibility. Employers should clarify and consult their workforce on procedural changes if they are to bring them on board, especially any employees who may be more sceptical about climate change.

What is clear is that the climate crisis looks set to become one of the most important drivers for corporate change in coming years. Businesses are under intense scrutiny to adapt to a changing world with a future-focused lens, ensuring that their business models and service-offerings will remain sustainable in the coming decades. This is why it is crucial for employers to consider these issues as part of their wider corporate planning if they are to both mitigate the associated risks and better realise their ambitions to become a responsible business.■

Author

Charis Fergusson

Associate – DLA Piper UK LLP (Birmingham)

Second co-author:

Jonathan Exten-Wright

Partner – DLA Piper UK (London)