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Blowing the whistle on environmental damage – what workers need to know

The COP26 climate talks and the actions surrounding the conference, have served as a stark reminder that drastic action must be taken now to prevent climate catastrophe. As António Guterres, Secretary General of the United Nations, warned at the beginning of the COP26, “Either we stop it, or it stops us.”

At Protect, we recognise whistleblowing has an important role to play in preventing further environmental damage and addressing the climate crisis. Yet, as our  Chief  Executive, Liz Gardiner, highlighted in her  recent blog for the Green Alliance, there appear to be relatively few whistleblowers raising concerns about environmental damage in the UK.

The Environment Agency, who are responsible for the regulation of the environment and waste in England, received only 10 qualifying whistleblowing disclosures between April 2020 and March 2021. Whilst Ofwat, the economic regulator for the water industry, received only four qualifying disclosures in the same period. Similarly, at Protect we receive comparatively few calls from whistleblowers raising concerns about environmental damage. Last year for example, only 13 of almost 4,000 calls we received related to environmental damage.

We need only look to the streets of Glasgow where thousands of protestors marched at the start of COP, to demand that governments and corporations take more urgent climate crisis action, to see that a huge number of individuals and grassroots organisations are mobilising on this issue. This sort of action is vitally important but we need a multi-pronged approach. Governments must take steps to introduce regulations that enforce climate targets, and corporations must take active measures to meet these targets and prevent environmental damage. In turn, whistleblowers have an important role to play in ensuring that the organisations they work for are not damaging the environment.

To do this, workers must understand their rights. Whistleblowing law is specifically designed to protect workers who raise concerns about environmental damage in the workplace. The Public Interest Disclosure Act 1998 (PIDA) provides protection to workers and employees who raise public interest concerns, in the correct way, which in their reasonable belief tend to show that “the environment has been, is being, or likely to be damaged.”  If a worker is victimised or an employee is dismissed as a result of raising these types of concerns, they have a right to bring a claim to the employment tribunal for compensation or reinstatement.

Workers are well placed to spot the early warning signs that environmental damage is likely to occur, or indeed is occurring. If they are supported and protected by their employer in raising these concerns, damage can be prevented and the impact minimised as soon as possible.

The term the law uses –  environmental damage – is broad and could encompass of range of different types of damage. On the Advice Line the types of concerns we have received to date generally focus on unlawful environmental damage, such as the destruction of wild birds’ nests and dumping of asbestos. However, the environmental damage does not necessarily have to be unlawful for it to fall within the scope of whistleblowing law.  For example, it is possible that workers could raise whistleblowing concerns about an employer using practices that whilst lawful are environmentally harmful.

Greenwashing, when organisations incorrectly represent how environmentally sustainable their products or business operations are, is a growing issue and the type of concern that whistleblowers could hypothetically raise concerns about. It is certainly an issue that the Competition and Markets Authority (CMA) is seeking address through their recent publication of the ‘Green Claims Code,’ which sets out guidance for business on how to comply with the law when making environmental claims. Research from Advanced, the British software and services provider, showed that 43% of employees think their company has been guilty of greenwashing.

Most recently, the UK power company the Drax Group, which is the UKs biggest carbon emitter, has come under fire for misrepresenting its sustainability credentials. On this basis a group of environmental organisations have recently filed a landmark complaint with the Organisation for Economic Cooperation and Development (OECD) alleging that the group is falsely claiming to be effectively carbon neutral.

In the US there are already a growing number of greenwashing whistleblowing cases. Just this year, whistleblower Desiree Fixler’s expose that the DWS Group had falsely reported that $459bn of assets met environmental and social governance (ESG) standards, has led to a significant US Securities and Exchange Commission investigation into the company. Whilst there are yet to be many employment tribunal cases of whistleblowing on environmental damage in the UK, in the age of environmental crisis this seems likely to increase.

At Protect, we want to do our part in contributing to the efforts to prevent climate catastrophe. We think it is important that workers understand, and are empowered, to use the legal protections that are available to them if they do blow the whistle on environmental damage. Our Advice Line is open five days a week and provides free and confidential advice to whistleblowers. If you are a worker with concerns about environmental damage in the workplace, we can advise you on how to safely raise your concerns and your rights when doing so.

By Protect Adviser Caitlin Comins