Protesting: Do You Know Your Employees’ Rights?

October 10, 2022

By Ciara O’Brien

The arrest of several protestors during official events to mark the death of Queen Elizabeth II has raised concerns about our right to protest in the UK.

Given the growing costs of living crisis, the spectre of more civil unrest and citizens taking to the streets to protest is also a distinct possibility. In this article, we therefore explore the legal right to protest and how employers should manage any potential impact of protesting in the workplace.

What is the legal position on protesting?

Everyone in the UK has the right to protest in a peaceful way. Although there is no specific legal right to protest, the right to freedom of expression and freedom of assembly are protected under articles 10 and 11 of the European Convention on Human Rights, which have been incorporated into the Human Rights Act.

However, our right to protest is restricted by certain laws, such as the Public Order Act, which allows police to arrest individuals whose behaviour may cause harassment, alarm or distress. Police also have the power to arrest individuals for the common law offence of ‘breach of the peace’ if their behaviour has caused, or may cause, harm to another person or their property.

Can an employee request time off to attend a protest?

Provided that employees provide the correct amount of notice to take annual leave (as required by their contract of employment or workplace policy), employees should be allowed to take time off to attend a protest. If an employee is absent from work in order to attend a protest without permission, you can consider taking disciplinary action.

Can you discipline an employee for their conduct at a protest?

Yes, potentially. Although the protest will be taking place outside of working hours, if an employee’s conduct at a protest has an impact on their ability to undertake their role, or if it is capable of bringing your business into disrepute, you may have grounds to discipline the employee.

Does an employee have an obligation to tell you if they are arrested at a protest and charged with a criminal offence?

There is no general legal obligation for employees to tell you if they have been charged with a criminal offence, except in certain regulated sectors. However, if an employee is charged with an offence and chooses to conceal it from you, depending on the nature and seriousness of the offence, you may feel that they have acted dishonestly and breached the implied duty of mutual trust and confidence between you.

There may also be a clause in the employee’s employment contract stating that they are obliged to tell you if they have been accused of a criminal offence or convicted of certain offences. If an employee fails to do so, they would be in breach of contract and you would have grounds to initiate disciplinary proceedings against them. Depending on the seriousness of the offence, it could also potentially provide grounds for their dismissal.

What should we do if an employee is arrested at a protest and charged with a criminal offence?

If an employee is arrested and accused of a criminal offence during a protest, you should not treat this as a reason to automatically dismiss them. You will need to consider, on a case-by-case basis, whether the conduct is sufficiently serious to warrant disciplinary action, including dismissal. Key considerations will be the seriousness of the alleged crime, any mitigating factors, any potential damage to the organisation’s reputation, and whether you believe it makes the employee unsuitable for their role.

There is no legal requirement for you to wait for the outcome of any criminal proceedings before taking any disciplinary action, including dismissal. It will all depend on the circumstances and the seriousness of the allegations.

If you need any help or advice on any of the above, please contact Rebecca Jenkins on rjenkins@darwingray.com / 02920 829 130 for a free initial chat to see how we can help you.

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