Brand activism at work
Organisations are increasingly being expected to act on emerging societal issues. People want to see companies becoming increasingly active in advocating for change. Whether under the guise of ESG, CSR, ED&I or other moniker, businesses are engaging in increasingly moralistic sentiment and behaviour in order to demonstrate their purpose and drive growth.
I reflect on what’s behind the rise in brand activism and considers related workplace and employment law issues.
The risk of brand activism
Brand activism is a term used when a brand looks to have an effect on a social, economic, environmental, or political issue. Many purpose-driven employers view this as a way of attracting and retaining the best people, alongside broadening their brand’s reach and driving sales.?
Inevitably, brand activism has the potential to court controversy and result in a backlash from some quarters. It also raises employment law issues concerning employers’ rights to restrict their employees’ behaviours inside and outside work, and employees’ rights to express their personal views without restriction.
What is behind the rise?
Covid-19
A Deloitte study “#GetOutInFront” tested public attitudes to issues before and after Covid-19, and how those issues have influenced behaviour and reputation. It found that 40% of the general public say they are more likely to be activists after Covid-19. 38% classify as an activist already, and a fifth say they switched brands because of how they feel about the issues.
Stakeholder pressure
Stakeholder pressure is often behind the increased vocalism of businesses on social issues beyond those which directly relate to their business. Customers, investors and employees increasingly base decisions on the values of the organisations they partner with. People increasingly are using social media and taking to the streets to stand up against injustice.
The 2021 Edelman Trust Barometer illustrates the growing importance of an organisation’s values in the decisions of consumers and employees. The report highlights that more is now expected of the businesses we purchase from, with more than half of consumers now buying or advocating for brands based solely on their beliefs. It also shows that six in 10 employees will choose employers based on shared beliefs and values.
Trust is greater today in business than in politicians or journalists. The Edelman Trust Barometer shows that businesses are regarded as both ethical and competent whereas as the media and politicians are regarded as neither. However, with this trust comes increased responsibility. People expect businesses to step up in the face of a sense of failure of leadership by governments and traditional institutions, and many progressive businesses see themselves as taking stands to create a better world.
The role of ESG
The promotion of corporate values has, in many cases, complemented a company’s ESG strategy. The S in ESG refers to “social” and represents a company’s impact on its stakeholders and its broader community.?An increased willingness for a company to comment on issues in society represents an important feature of many ESG strategies.
In the UK, social or political issues to which business have responded include the Russian invasion of Ukraine, Black Lives Matters, trans rights, sustainability, and Brexit.
Influence from the US
The rise in brand activism is particularly visible in the US. There has been a succession of examples in which companies have taken stances on topical issues. For example, many companies, including IBM and Microsoft, considered it important to support publicly the Black Lives Matter movement. As well as abortion rights, gun control is another political issue on which some companies have taken a stand.
The US can be distinguished from the UK by the donations commonly made to politicians by companies - a practice severely restricted in the UK. This may contribute to the greater pressure businesses in the US come under to take political positions on key issues. For example, the US company BSR reacted to the leak of the draft US Supreme Court decision on abortion rights suggesting that Roe v Wade would be overturned after nearly fifty years by commenting:
““It’s time for companies to align—once and for all—their public positions, their operational/workforce policies, and their political influence. They have to all be pointing in the same direction …companies’ public and internal commitments to women’s empowerment may directly contradict with how they spend their lobbying dollars, and that contradiction will be untenable.””
Whilst such an approach may go too far for most in the UK at present, American-based multinationals will often expect their overseas subsidiaries to follow the values and policies of their US parent. These pressures will no doubt increasingly cross the Atlantic. Indeed, I have been advising domestic businesses with US or Canadian parents, where their UK people strategy is heavily influenced by transatlantic preferences.
Signs of division
At the same time that brand activism is on the rise, conflicting values and beliefs within society are becoming more pronounced. Whether it be identity politics or attacks on 'woke capitalism', the potential for divisive dialogue and friction between colleagues, or between employees and the organisation itself, is increasing.
The impact of values in the workplace
Employee values
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The current reported skills shortage has caused employers to recognise that in competing to attract and retain the best people both prospective and current employees now expect more of their employer. Increasingly the choice of employer and its values is seen by employees as an extension of their own personal brand and employers are having to respond to this.
Staff are increasing vocal and assertive about their expectations, pushing their employer toward reflecting their own values and priorities.?Deloitte’s 2022 Global Gen Z and Millennial Survey showed that a majority of both Gen Z and Millennial employees are dissatisfied with their employer’s commitment to societal impact.
Employer values
The pressure to promote certain values can also come from the employer. Purpose-driven employers invest greatly in promoting their values in a climate of increased brand activism and they will want to avoid their employees’ words or actions damaging that brand.
It is common for employment contracts to contain a clause along the lines of:
“You will not whether in the course of your employment or otherwise directly or indirectly make any statement or comment, publish/share any blog or social media post or act in a way which is likely to damage our reputation”
It is easy to see how an employer may consider an employee, particularly a senior employee, acting contrary to its values might be in breach of a clause like this (possibly outside of work as well as in the course of fulfilling their duties).
Take an organisation whose values include promoting a sustainable future and reducing the environmental impact of its activities. Is one of that organisation’s executives potentially in breach of that contractual term if they drive a gas guzzling car or take long-haul flights on holiday where the organisation is taking steps to limit unnecessary business travel? In a high-profile case in a work setting, it is easy to see how the media might pick up on a senior executive espousing one set of behaviours in work and then, they will say, hypocritically behaving in a contradictory way in their private life.
Employment law implications
Disciplinary action
Disciplinary action can be taken in cases of social media activity outside of work where that activity is likely to affect the employment relationship either because of the nature of the work or because of concerns about damage to employer reputation. In terms of justifying action in the context of unfair dismissal claims, much will depend on being able to identify the potential damage to the organisation’s reputation, rather than just a risk of being seen in a poor light by the public. Information shared internally on the importance the organisation places on its values and employee behaviours, as well as the extent to which employers have promoted their values more visibly externally, are likely to be relevant.
As brand activism grows, we may see employers taking more action against employees on this basis.
Diversity and inclusion
Workplace cultures that reflect an employer’s values can encourage employee retention, help attract the best candidates and enhance an employer’s reputation. Will some organisations which place a certain set of values at their heart unrepentantly trumpet these values to attract customers or employees who share those values at the expense of those with different values? And if organisations seek to recruit employees committed to the employer’s core values, how would this play out under equality laws? How would an employer reconcile this with a drive to create a diverse workforce in order to harness a wide range of skills and experience which would inevitably embrace a range of views on political or social issues?
The Equality Act 2010 provides that it is unlawful to discriminate against someone because of a protected characteristic. There are nine protected characteristics, including age, disability, race, sex, religious or philosophical belief and gender reassignment.
Courts and tribunals already grapple with the scope of protection under the Equality Act where different rights and protections clash. Conflict tends to arise between the protected characteristics of religion or belief and sexual orientation and gender reassignment, since some religious groups have strong views on sexual orientation, sexual identity and trans rights.
To amount to a philosophical belief, a belief has to relate to a weighty and substantial aspect of human life and behaviour; have attained a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. Tribunals have held that the protection against discrimination on the grounds of philosophical belief can potentially cover veganism; a belief in climate change and “gender-critical” beliefs, for example.
The Maya Forstater and Alison Bailey cases are the most recent decisions in this area on the potential conflict between “gender-critical beliefs” and the rights of transgender and non-binary people. The tribunal in this case considered that the right to hold a protected belief includes a limited right to manifest that belief and taking detrimental action over legitimate statements of (protected) belief can, in some circumstances, be regarded as unlawful direct discrimination. However, employers ought still to be able to ask employees to avoid proactively airing their views in the workplace if they are causing offence or those views are incompatible with internal policies (as was the case in the Mackereth decision, another recent decision in this area).?Taking action because of the inappropriate manifestation of a protected belief in this way could amount to indirect, rather than direct discrimination, which is potentially justifiable as a proportionate means of achieving a legitimate aim.
The European Convention on Human Rights, including the Article 10 right to freedom of expression, applies in the UK pursuant to the Human Rights Act 1998. Clashes of rights and protections in the workplace are not new, but employers may increasingly find themselves balancing these competing rights when confronted by those expecting employees to adhere to the organisation’s values whilst others decry any attempt to stifle free speech. Equally claims can be foreseen from those whose values run counter to the values espoused by their employer and who may claim to have been denied opportunities or harassed by colleagues as a consequence.
Whether under human rights or equality laws, the employer will need to tread carefully, particularly where activity takes place outside of the workplace, and the employee makes clear that they are expressing their personal views and not that of their employer.
Employer actions
Brand active employers will need to tread carefully in promoting their values and commenting on social and political issues whilst minimising the risk of tensions or even legal issues arising in the workplace.
Prudent employers will want to consider a range of steps to prepare for value clashes at work