March 2022 Issue
FW discusses workplace activism with Nicola Rabson and Laurie Ollivent at Linklaters LLP.
FW: Could you explain your view of what workplace activism means, and the risks and opportunities it presents to companies?
Rabson: Workplace activism describes the actions taken by individuals within the workplace – either individually or collectively – about working conditions, but also broader societal, environmental and political issues, which the workforce think organisations should be taking a stance on, irrespective of whether it actually relates to the business’ main purpose. ‘Activism’ is not a defined term, much in the same way as ‘culture’ is not. It has a wide range of connotations and can mean something different to each person. For most people, they think of strikes, protests and industrial unrest. But views are changing as business leaders begin to understand what activism really means. What one person might view as rebellion, disruptiveness or even radicalism, another might view as an opportunity for change, or as part of general risk management. It is not just about the macro. Activism can take many forms and can be as subtle and collaborative as working groups coming together to provide feedback to the business and recommend actions for change, or action taken in response to engagement surveys and feedback shared in an exit interview, which is a form of micro-activism. The risks that workplace activism poses to businesses can be obvious. Examples of macro forms of activism often grab the attention of investors and consumers, and will make headlines. We have seen these issues impact share price, drive consumer trends, affect the ability to list or float, hit the balance sheet, and even drive changes in the law. While business leaders’ instincts might be to restrict or suppress macro-activism to avoid reputational harm, doing so can deter issues from being reported internally, harm workplace culture and risk losing key talent. Suppression of activism could also be unlawful in some jurisdictions. Along with the risks, there are opportunities brought by workplace activism. In some cases, it has the potential to add value to a business and improve culture. It can drive change and challenge assumptions. It can be used to understand different voices and opinions across the broader workforce and hear from different demographics. It can also be used to challenge the status quo and help organisations respond to change happening within the organisation, and externally.
Ollivent: Workplace activism is not a new concept. But it has been amplified in recent times by societal movements like BlackLivesMatter, and the circumstances of the coronavirus (COVID-19) pandemic, and climate change issues. In recent years we have seen this reflected in rising demand from companies seeking advice on workplace investigations, crisis management mandates and conduct issues relating to workplace activism. As corporate governance expectations and attitudes toward culture have evolved, employers are increasingly expected to promote the interests of their wider workforce as well as those of their shareholders. To attract and retain the right talent for long-term sustainability, business leaders need to adapt to changing societal expectations and the evolving mindsets of their existing and future workforces.
FW: Drilling down, what factors typically drive activism in the workplace? Are there any common, underlying issues causing it to gather pace?
Ollivent: There are a variety of factors and much depends on the context and market trends. In recent times, we have seen macro forms of activism in response to societal movements, such as MeToo and BlackLivesMatter. But we are increasingly seeing activism relating to political and climate issues which individuals want their employers to take a stance on. As the focus on environmental, social and governance (ESG) and sustainability continues, the spotlight is very much on the actions that private organisations take to drive change. Workforces are increasingly looking to their employers to take a stance on these issues and understand what steps they are taking to bring about change. Of course, we also see activism result from issues within the workplace, such as changes to terms and conditions, hybrid working arrangements, and relating to workplace culture. We are hearing anecdotally that employees are feeling more emboldened to speak up about issues, both workplace and broader societal issues, coming out of the pandemic than ever before.
Rabson: In recent years there has been a heightened awareness of workplace rights which has helped activism to thrive. Alongside societal movements, the focus on worker status and the rights of self-employed workers – particularly across the gig-economy – is another good example. We have seen high-profile litigation from activist workforces resulting in working models and business plans being changed. These issues have affected the ability to list and float for some organisations and have impacted share price for others. It has also led to changes in employment law and regulation across many jurisdictions. Alongside this, we have seen a general increase in union and workforce representation in recent years – trends we have not seen since the 70s and 80s, but now moving into professional services and the tech sector, gig-economy.
“We are increasingly seeing activism relating to political and climate issues which individuals want their employers to take a stance on.”
FW: Which stratum of employee is most likely to engage in activist activity? Through what channels do they typically agitate and what strategies do they tend to adopt?
Rabson: The type of employee and channel deployed largely depends on the business and the issues at hand. It is important for business leaders to understand that activism can take many forms and is not just about protests, strikes and industrial unrest – although it can result in that type of activism if it is not properly managed. Social media is an obvious risk for employers now. Individuals can become activists within their workplaces very quickly. Last year, it was reported how workers of a large tech company staged a walkout in response to allegations against its chief executive. The walkout was planned by employees on Twitter and took place a mere two hours later. Now, more than ever, it is important for businesses to have sound social media policies and clear communication to the workforce on expectations and tolerance around such issues, particularly in today’s hybrid and remote working environment.
Ollivent: This is not just about protests and macro-activism. Engaged employees can be the most activist via managed and formal workplace channels, including employee engagement forums and network groups, as well as speak up, whistleblowing channels. These channels for activism can be used by businesses as part of general risk management to help identify and pre-empt systemic issues or wider workplace issues before they reach crisis stage.
FW: In your experience, are leaders well-equipped to handle outspoken employees? What options are available to senior management in formulating an effective response?
Rabson: In our experience, some leaders are well-equipped, and it is usually those who already have a good eye on the culture of their organisation. But optimism bias is an inherent risk – a mindset for senior leaders where the more senior they become, the more they forget what it is actually like at the coalface and to be part of the wider workforce. Optimism bias and groupthink at a senior level can be a serious business risk for culture, diversity and how workplace activism is managed. With macro forms of activism often making the headlines, it is important for leaders to consider their strategy around public relations and communications early on, to prevent, manage or mitigate reputational harm. It is important to have the right stakeholders and expertise to advise leaders through these challenging times.
Ollivent: Being neutral or apolitical is also not an option in many circumstances – it can suggest privilege, complacency or ignorance of certain issues, particularly societal issues relating to diversity, equality and discrimination.
FW: To what extent has a greater use of technology during the coronavirus (COVID-19) pandemic stimulated workplace activism? How can senior management best utilise available communication channels to address concerns?
Ollivent: Social media enables employees to become activists within their workplaces very quickly. Instant messaging and online communication tools when working from the comfort of your own home can lead to employees feeling more emboldened to speak out or forget the professional context in which they would normally converse with colleagues in the office. No one can ignore the shift in the balance of power that the circumstances of the COVID-19 pandemic have brought to the workforce. Change is certainly afoot for corporate culture – and it is largely being driven by the views, desires and expectations of the workforce coming out of, or going back into, the pandemic. Employees are increasingly making more informed decisions on where to work based on factors beyond just pay and reward. As businesses continue to explore hybrid working models – whether fully, partially or not at all – the collective and individual views of the workforce are paramount and will drive corporate culture, recruitment, retention rates, productivity and engagement in the coming months and years.
Rabson: It is important to have clear and robust social media and communications policies in place so that the workforce is clear on what is permitted use and what behaviours will not be tolerated. It is also important for senior management to lead by example in how they communicate with their colleagues and share workplace information. Most large organisations now have well-established and communicated whistleblowing and speak up policies and procedures in place. How well these are utilised will depend on the culture of the business and whether there is a culture of psychological safety – meaning that employees feel safe to report their concerns without fear of reprisal or other consequence.
“Along with the risks, there are opportunities brought by workplace activism. It can drive change and challenge assumptions.”
FW: What are the potential consequences if leaders fail to listen and respond appropriately to activist concerns? To what extent should they actually be proactive in helping employees to speak up and be heard?
Rabson: There are clearly potential risks associated with workplace activism for businesses and it is important for senior leaders to appreciate that the consequences of activism can be long term and impact the culture of an organisation, its talent pipeline and broader reputation long after the headlines become tomorrow’s chip paper. Proper management of, and action taken in response to, workplace activism is part of general risk management and good corporate governance. As workers increasingly seek to challenge their employers’ views which might prioritise profit over people and the planet, we have seen activism within the workplace impact individuals, as well as organisations, and regulators are increasingly holding leaders to account for workplace behaviours and cultural failings within their organisations. Litigation is also an obvious risk. Employment tribunal hearings are often held in public, and it can become more difficult to retain control over confidential or sensitive information reaching the public domain once litigation commences.
Ollivent: Macro forms of activism often attract media attention and make the headlines. When leaders fail to listen and respond appropriately to activist concerns, there is the risk that these issues will escalate further, becoming more public and even attracting regulatory attention, investigation and leading to personal accountability. As we have seen with the gig-economy and activism over worker status, these issues can lead to long-running litigation and calls for action and changes in the law. We have also seen this with many diversity topics in recent years, including equal pay, gender and ethnicity pay reporting, better protections for employees going through the menopause and increased regulation across diversity reporting more broadly.
FW: What essential advice would you offer to business leaders on managing and pre-empting employee concerns to reduce the potential for damaging activism?
Rabson: My essential piece of advice would be to listen. A culture of psychological safety within the workplace is paramount for activism to be managed well and the business to benefit from it. Business leaders need to understand the source and context of the activism and be prepared to listen to it and then follow up on it. Their knee-jerk reaction should not always be to dismiss it or supress it.
Ollivent: While many of the examples of activism we have referred to fall on the macro side – frankly, it is the macro stories that make the headlines – it is important for business leaders to remember that the regular, day-to-day, micro forms of activism within the workplace can help to drive change, challenge assumptions and improve culture. My essential advice would be to listen and not to ignore the micro activism.
FW: As the world continues to adapt to a new way of working, what are your expectations for workplace activism in the years ahead? What will it look like in the ‘new normal’?
Rabson: Workplace activism is increasingly becoming a defining feature of the workplace. We expect to see more societal movements which will drive workplace activism in the future, and as the focus on ESG and workplace culture continues, we expect a rise in speaking up and workplace activism will follow. Employee activism was recently listed as one of eight essential factors for ESG to watch out for in 2022 by the Financial Times.
Ollivent: We often hear that younger generations of workers can be the most activist and expect their employers to be engaged in societal and political movements. As these generations become the largest demographics of our workforce, business leaders will need to adapt to the evolving expectations and mindsets in order to attract and retain talent. Coming out of the COVID-19 pandemic, we have seen many business leaders criticised for sharing their views, rightly or wrongly, on hybrid working and being out of touch with the desires and expectations of the wider workforce, who are increasingly making informed decisions on where to work based on factors beyond just pay and reward.
Nicola Rabson is a partner in Linklaters’ employment & incentives group. She advises clients on their most challenging and sensitive employment and people-related issues and tackles the most complex of employment disputes, with extensive experience of high court and tribunal litigation and managing internal investigations relating to workplace behaviours. She is a frequent speaker and commentator on employment issues, with a particular interest in diversity, whistleblowing and culture. She is also a CEDR accredited mediator. She can be contacted on +44 (0)20 7456 5284 or by email: nicola.rabson@linklaters.com.
Laurie Ollivent is a senior practice development lawyer in Linklaters’ employment & incentives group. She works closely with businesses to provide updates on market trends, legal and regulatory developments, and provides legal training and management advisory sessions to clients across all aspects of people-related matters. She has considerable experience advising businesses on diversity, culture, environmental, social and governance (ESG) and the future of work. She can be contacted on +44 (0)20 7456 4421 or by email: laurie.ollivent@linklaters.com.
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