What HR Practitioners Need to know or do if their employees attend protests or marches

In the UK, the legal position around employees attending protests or expressing political views is a mix of employment law, human rights law and practical employer considerations. Whilst the right to protest is protected under the European Convention on Human Rights, this only applies to peaceful protest and does not extend to any violence inflicted or damage caused during a protest. While most protests are peaceful, and those that aren’t might not directly affect a specific business, employers of those who attend protests or marches need to be aware of how to handle attendance at these events, both during and outside of working hours, and how to appropriately manage employees that do attend, should it be necessary.

Human rights and employment law context

Everyone has the right to protest and to organise protests. The right is protected by the European Convention on Human Rights, with the right to freedom of expression protected under Article 10 of the ECHR, and the right to freedom of assembly protected under Article 11. These are also incorporated into UK law via the Human Rights Act 1998. However, these rights are not absolute – they can be restricted for reasons like public safety, prevention of disorder or crime, or protecting the rights of others. Private employers are not directly bound by the Human Rights Act in the same way as public bodies, but the Employment Tribunal can take these rights into account, for example in unfair dismissal claims.

Attendance during vs outside working hours

On occasions where an Employee attends a protest or a march, if any issues arise, employers will need to consider when the protest took place. There is no general legal right for an employee to take time off to attend a protest. If the protest falls during working hours, the employee would generally need to request annual leave or unpaid leave to attend. Attendance in personal time is usually lawful, unless the protest itself involves illegal activity or the employee engages in unlawful conduct.

Arrests/convictions arising from protests

If an employee is arrested or convicted in a criminal court as the result of attending a protest, employers may consider taking disciplinary action depending on:

• The nature of the offence,

• Whether it impacts the employee’s ability to perform their role – for example if they are kept in custody for an extended period of time

• Whether it damages the employer’s reputation

Best practice would dictate that every employer should have a clear disciplinary policy covering conduct outside work.

Considering protected beliefs (Equality Act 2010)

Should an employee attend a protest or a march, and the employer is considering disciplinary proceedings, key consideration should be given to the reason for the demonstration and the beliefs that the employee is expressing. Political beliefs can be protected as a “philosophical belief” under the Equality Act 2010 if they meet certain criteria as outlined in a 2009 case of Grainger plc v Nicholson:

• The belief must be genuinely held

• It must be a belief and not, simply, an opinion or viewpoint based on the present state of information available

• It must be a belief as to a weighty and substantial aspect of human life and behaviour

• It must attain a certain level of cogency, seriousness, cohesion and behaviour

• 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

A more recent piece of case law in 2021 – (Forstater v CGD Europe) confirmed that even controversial views can be protected if expressed without harassment or hate speech.

Social media and online expression

Whilst expressions of political beliefs can be carried out in person with attendance at organised protests and marches, expression can also come in digital form via social media and online expression. Employees can discipline staff for online posts if:

• The post breaches social media or conduct policy

• It damages the employer’s reputation

• It constitutes harassment or discrimination under the Equality Act.

Even personal accounts can be relevant if the employee is identifiable as working for the employer.

Risks of disciplinary action and unfair dismissal

Employers should be aware that disciplinary action taken against employees expressing their lawful right to protest can be wrought with risk if they are not handled in the correct manner, or if they are deemed to be unfair. For example, currently employees with over two years’ service can claim unfair dismissal if the reason for dismissal is not fair, or if the process is flawed – please note that the Employment Rights Bill intends to amend this period of service, but as at the date of publication of this article, this remains the current length of required service to raise a claim for unfair dismissal. There is however no qualifying period if dismissal is due to asserting a statutory right. There is also the risk of claims for discrimination claims if disciplinary action relates to a political belief.

Best-practice steps for employers

So, what steps should employers take to avoid potential risk as the result of managing situations where an employee requires to be disciplined following attendance at a protest, or expression of a belief online? Best practice would suggest the following:

• Have a clear code of conduct on political activity, social media use, and representing the business

• Distinguish between lawful protest and unlawful conduct

• Apply policies consistently to avoid discrimination claims

• Train managers on handling political expression respectfully and lawfully

• Assess reputational risk but balance it against employee rights

• Avoid knee-jerk reactions – investigate facts before taking action

• If you aren’t sure how to handle a situation correctly, seek legal advice before action is taken

Conclusion

Employers must strike a careful balance between upholding workplace standards and respecting individual rights. Clear policies, fairprocedures, and open communication are essential. As the legal landscape evolves, regular policy reviews and proactive education will help ensure compliance and build trust.

Article by Robin White, Legal Director and Head of Insured Employment at rradar