Protesting Professionally: know your employment rights while you march

Firstly, you can ask to take annual leave. Almost all employment contracts have to offer you 28 days paid annual leave a year. Often these include public holidays, but some will offer you leave on top of these.

The process of requesting this annual leave depends on your employer. Typically, you must submit your request for a period of annual leave, twice as long as that period prior to starting it.

So, if you are asking for one week off, you must request this at least two weeks before you plan to take it. Or if you are asking for a day off, ask at least two days before – so if you want next Thursday off, ideally you should ask on Monday so there are two clear days in between.

If your employer refuses your request, they must do so within half that time. So, for your requested one week’s leave, they must tell you at least one week before it starts if they are refusing it.

Your employer is not obligated to give you any specific days for annual leave, so they can technically turn down your request. However, they cannot stop you taking your 28 days a year. 

If your request is rejected and you think it might be related to your intention to protest, you should check if there are signs of discrimination in the rejection decision. For more information on this, take a look at the “Do I have grounds for a discrimination claim?” section below.

If you have run out of annual leave days, or you don’t have time to request it, then your options are more limited. However, you could try talking to your manager directly. They may be willing to allow you last minute leave.

This might sound unlikely, but remember that Patagonia, the outdoor clothing company, let all of their employers have a day off work on 20 September 2019 so that they could join the climate change protests. If your employer sympathises with the cause, then this could be a good option.

Be aware that, although you can ask for last minute leave, you may have to settle for it to be unpaid.

If these options fail and you are not allowed time off, you should consider whether your employer’s actions are justified.

You do have a contract with your employer to attend work and provide your services. If you walk out of work without agreeing leave (paid or unpaid) then you are breaching that contract. If you breach your contract, they can use this as grounds to discipline you. Some conduct might justify your employer dismissing you. You should seek legal advice to see whether you have any grounds to challenge your employer’s actions. 

However, you also have rights against discrimination, which means your employer must treat you in the same way as they treat all of their other employees. Therefore, if your employer rejects your annual leave request, or disciplines or dismisses you for taking time off, then they must act in the same way to any other employee who does the same.

If you feel that other employees would have been able to take approved or unapproved time off, but you were not, then it is worth talking to a solicitor about whether this has breached your rights. The solicitor may ask whether they have discriminated against you in relation to any of the Protected Characteristics from the Equality Act 2010, and this can include being discriminated against on grounds of race or philosophical belief. You can find more information on those characteristics here.

If you protest during your agreed free time, your employer should not be able to fire you for this.

Homa Wilson, partner in the Employment team at Hodge, Jones & Allen, says:

“Your employer has no right to interfere with what you do in your free time – this includes taking part in a protest. However, if your conduct, outside of work, brings the employer into disrepute, you may face disciplinary action. This does not necessarily mean that the disciplinary action is justified, so you should take legal advice to challenge it as appropriate.”

Merely attending a protest, especially one for a good cause, is unlikely to be considered “disrepute”. Of course, it becomes more complicated if you are arrested, as we explain below.

Article 11 ensures that the police are not be able to arrest you simply for attending the protest.

However, protests are outdoor gatherings under the Coronavirus regulations. They should be exempt from restrictions as they are generally organised by charitable or political bodies pursuing a relevant aim, and a risk assessment should have been performed.

Nevertheless, police have been known to use these regulations (wrongfully) as an excuse to attempt to disperse protesters. These regulations also give them the right to arrest and fine anyone who does not comply with the order to disperse.

In practice, it is therefore important to educate yourself on the police’s powers of arrest and the implications an arrest can have, just in case.

Before offering you a contract of employment, employers can search your criminal record using a DBS (Disclosure and Barring Service) check. There are three main forms of this check: basic, standard or enhanced. Most employers will use a basic check, but some professions will use a standard or enhanced check. These are mostly professions which handle sensitive materials such as law, accountancy, health care or childcare.

When worrying about whether your conviction will appear in this check, a key aspect to keep in mind is whether your conviction is spent or unspent.

‘Unspent’ convictions show up on basic DBS checks. However, once a conviction becomes ‘spent’, it ceases to appear on these. It will still appear on standard and enhanced DBS checks.

All convictions start as ‘unspent’, but at some point they become ‘spent’. Therefore, the period of time within which it is ‘unspent’ is the difficult time from an employment point of view.

An offence under the Coronavirus regulations for non-compliance can result in a court fine. However, there are some further offences which have been applied to peaceful protesters in the past, such as during the Extinction Rebellion protests.

Below is a list of penalties which have been applied to protesters in the past (often wrongfully), and the time it takes for them to become spent: 

• Caution = immediately spent (n.b. if you are offered a caution by the police as an easy way of going home you should not accept it without taking legal advice; although it might seem like a minor penalty it is still an admission of guilt, and you may have done nothing wrong) 
  
• Conditional discharges = spent when their determined period finishes (e.g. 6 months was common for extinction rebellion) 
  
• Fined in court = becomes spent a year after the court date
  
• Community order = becomes spent a year after the sentence finishes

A ‘spent’ conviction will stop showing up on standard and enhanced DBS checks after they become eligible for filtering. This process is a little complicated, but there is a great handout here which gives an overview.

You should not be given prison time for anything related to simply attending a protest. If the police threaten you with this, please contact us or otherwise seek legal support. BPLS have a network of brilliant lawyers who can offer advice.

If you are worried about being arrested while you are employed, the first thing to do is to check your employment contract. If it contains a clause stating that you must disclose any arrests to your employer, then you will need to do so. If you are in a regulated industry, you may have an obligation to disclose the arrest to your regulator.

However, if there is no such clause, you are generally not obligated to tell your employer about an arrest which will not affect your ability to work, even if it is unspent, without them asking.

You may have to tell your employer if your sentence affects your ability to work. For example, if you travel a lot with your job but a community order comes with a curfew which restricts your ability to travel, you will need to tell your employer. Consider whether your work will be affected by any of the above sentences.

In addition, some careers or professions demand a higher standard of behaviour; jobs involving children, vulnerable adults or firearms will not allow you to work with even minor convictions, and professions with regulatory bodies such as law or accountancy will hold disciplinary procedures over minor convictions as well.  

If you choose to tell your employer about your arrest, or they find out in another way, it does not automatically mean they can discipline you for what has happened outside of work. However, they may want to question you about it.

Homa Wilson explains that:

“the general principle applies, which is that you have an obligation to comply with your employer’s reasonable instructions, and it is usually a good idea to co-operate. However, you should be mindful that anything you say to your employer as part of an internal investigation or disciplinary could be used against you in any criminal investigation. For this reason, you should be careful about how you approach any questions from your employer”.

If you are fired, it is worth talking to an employment lawyer about this, as it may be challenged on the grounds of being unreasonable. This is particularly true if your conviction does not affect your ability to perform your job.

The more present danger emerges if you are applying for new jobs. A lot of employers will ask whether you have unspent convictions when you apply; you must answer truthfully, and they have the right to refuse you employment on that basis. They are also allowed to request a DBS check, and to turn you down if an unspent conviction appears.

However, remember that just because you have an unspent conviction doesn’t automatically mean you will be turned down – it’s still up to the employer whether to employ you. It might be worth speaking to them about it before they make the final decision, especially if you think there are circumstances that they should take into account.

It’s also important to remember that this is only relevant for the period in which your conviction is unspent. Therefore, if you only receive a caution, this will never appear on a standard DBS and you will never have to tell most employers about it. (n.b. if you are offered a caution by the police as an easy way of going home you should not accept it without taking legal advice; although it might seem like a minor penalty it is still an admission of guilt, and you may have done nothing wrong).

Although Legal Aid has been slashed in the last decade, one of the few areas it is technically still available is for discrimination cases. Unfortunately, the eligibility criteria are extremely strict and between 2014 and 2018 no legal aid was awarded for representation for workplace discrimination cases in the employment tribunal.

Note that there is a time limit of three months for bringing legal claims about discrimination at work, so it is worth contacting a solicitor as soon as possible, and they can help to check your eligibility for legal aid.

You can also check if you are eligible at https://www.gov.uk/check-legal-aid.

If you are unable to access legal aid and need legal support due to an issue arising from a protest, contact us here to see if any of our network of pro bono lawyers can help you.