Free speech warning for HE and FE sector: get the law right or prepare to pay a substantial fine

Last month the Office for Students (OfS) decided that the University of Sussex had breached its conditions of registration by failing to uphold freedom of speech. It ordered it to pay a penalty of £585,000 which the university is appealing.

Legal framework

All colleges have to comply with section 43 of the Education (No. 2) Act 1986 (duty relating to freedom of speech), Article 10 of the European Convention on Human Rights (the right to freedom of expression), the Equality Act 2010 and, in most cases, the Public Sector Equality Duty.

The OfS regulates the HE sector and those colleges that register with it. It can impose fines against those organisations that breach one or more of its conditions of registration or make a number of other interventions.

Background

The OfS launched its investigation following protests calling for the dismissal of Professor Kathleen Stock, a senior academic at the university. She had teaching and research interests relating to sex, gender, and the rights of individuals in connection to these. Some students took exception to her lawfully expressed views and accused her of being transphobic and bigoted. 

Decision

The OfS found that the university had breached two conditions: 

• It constrained freedom of speech and academic freedom in its governing documents which had the effect of restricting the expression of lawful views, including gender critical views. This caused harm by creating a ‘chilling effect’ so that staff and students self-censored and didn't speak about, or express certain lawful views. It imposed a fine of £360.00 for this breach.
• It adopted and/or revised a number of policies without proper delegated authority which resulted in ‘lower quality decisions’ which were not made in the best interests of the students and staff. It imposed a fine of £225,000 for this breach.

1. The chilling effect

In relation to the first breach, the OfS found that four elements of the university's trans and non-binary equality statement placed constraints on freedom of speech and academic freedom because: 

• It imposed a requirement for ‘any materials within relevant courses and modules [should] positively represent trans people and trans lives’
• It included a statement that said ‘the curriculum shall not rely on or reinforce stereotypical assumptions about trans people’
• It included a statement that ‘transphobic propaganda … will not be tolerated’; and
• A statement that 'transphobic abuse, harassment or bullying (name-calling/derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students and will be dealt with under the appropriate university procedures.

All of these statements were problematic. The university didn't have adequate safeguards within those statements, or in its governing documents, to adequately protect lawful free speech. As a result, it restricted certain viewpoints and lawful speech, including in its course materials and curriculum. This created a chilling effect on academic freedom and led to self-censorship.

2. Poor decision making

The university did not follow its own rules around delegating decision making. This meant that decisions weren't taken at the appropriate level which increased the risk that they were made without sufficient scrutiny, expertise or knowledge.

The trans and non-binary equality policy statement was developed by the confidential membership of the trans and non-binary staff network and was based on a template by Advance HE.

Implications for colleges

There is no hierarchy of protected characteristics under the Equality Act 2010. The policy adopted by the university didn't accurately reflect the law or even attempt to balance the rights of people with competing beliefs. It was approved quickly as part of the university's ambition to get into Stonewall's ‘top 100’. No-one appears to have stopped to think about whether it prioritised the beliefs of one group (which it did) and whether that was appropriate - as in legally justifiable (which it wasn't). 

It's absolutely essential that colleges dust off their policies and ask an expert to review them to ensure they are legally compliant. Sussex university made a number of changes to their policy during the investigation in an attempt to improve the situation, but many continued to prohibit lawful speech. This extended the period of the breach, which in turn, impacted the amount of the fine. It's therefore really important to get this right.

The laws around freedom of speech are being toughened up (although we don't have a precise date yet). The Higher Education (Freedom of Speech) Act 2023 amends provisions in the Higher Education and Research Act 2017 (HERA) and will require some colleges to promote the importance of free speech and protect academic freedom. Registered colleges must have ‘particular regard’ to the importance of freedom of speech and to take reasonable steps to achieve it for these groups. 

Academic staff have additional protections. They must be allowed to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without jeopardising their career prospects, having their privileges removed or being dismissed for doing so. 

We can help

We understand the law and can help you to navigate this complex area. We can review your policies and support you to make legally correct decisions. Jenny Arrowsmith is an employment lawyer who specialises in supporting our education clients. Please get in touch with her if you'd like to discuss your requirements. 

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