The Higher Education (Freedom of Speech) Act 2023 introduces a range of new and augmented free speech duties for higher education institutions in England. This briefing considers the employment law implications of those duties.
Introduction
In its 2019 manifesto, in the wake of several high-profile controversies at universities, the Conservative party promised to do more to protect academic freedom and free speech on campus. The new HE Act augments the existing duties protecting free speech to which HEIs are subject, as well as introducing new ones, such as the duty to promote its importance.
Alongside that, the HE Act introduces new regulatory requirements for Registered Higher Education Institutions and gives new monitoring duties to the Office for Students, alongside a new Director position on its board to oversee its functions with respect to free speech. This includes heading up a new free speech complaints scheme which, alongside a new statutory tort and the enforcement powers of the OfS, are the main means for enforcement of duties under the HE Act.
While, at first blush, it may seem that there would be little in such a new law to interest employment lawyers, this would be mistaken.
Employment-related duties
The primary duty under the HE Act is for the governing body of HEIs to take reasonably practicable steps to secure freedom of speech within the law for, among others, its staff and members. This is not entirely new and, under the near-identical duty under s.43 of the Education (No.2) Act 1986, Riniker confirmed that the duty extends to securing freedom of speech in all respects, which includes the employment relationship.
While the E2A was not enforceable other than by way of judicial review, the HE Act will be enforceable in the courts by way of the new statutory tort and, as discussed below, it arguably affects how certain employment law principles litigated in the tribunal will operate in a campus context.
As part of that duty, there is also additional (and new) protection for academic staff. A HEI must also take reasonably practicable steps to secure their academic freedom. This is described as their freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves at risk of:
- losing their jobs or other privileges;
- the likelihood of their securing promotions or different jobs being adversely affected; or
- if they are a job applicant, their chances of securing an academic job being adversely affected.
As such, the HE Act opens up the possibility of an academic, who has lost their job (etc) in circumstances where their free speech or academic freedom are in issue, bringing a claim in the courts for a breach of the new statutory tort and seeking, among other things, their dismissal-related losses. Whether such a claim would fall foul of the exclusion zone articulated in Johnson is a matter which would need to be litigated; the Government’s intention certainly seemed to be that such a claim could be brought in the courts (see Hansard).
Employers that are HEIs will therefore need to be mindful of this duty and the enhanced risk profile that will now attach to staff dismissals in cases involving free speech or academic freedom. This is especially the case with respect to its academic staff in light of the additional provisions above and because of the strong protection which is afforded to academic freedom of expression under Article 10 of the Convention. According to Erdogan, if the expression has the requisite academic qualities, this is afforded the utmost level of protection even extra morally and outside of academic books and papers. Kharmalov also made clear that a HEI would struggle to rely upon its own institutional reputation as a way of justifying any interference with the right to academic freedom of expression under Article 10(2) of the Convention.
Non-disclosure agreements
Buried in the HE Act is also a provision which is likely to materially change the way in which HEIs go about managing disputes as employers. As part of the core duty described above, it will now be unlawful for HEIs to enter into a non-disclosure agreement with its staff in relation to a complaint of bullying, harassment or sexual misconduct (and if entered into, it will be void).
This is important because it extends beyond disputes around free speech and academic freedom to any complaint of that nature. The terms bullying or harassment are also not defined or tied to any statutory (or other) definition and so lend themselves to a very broad interpretation. Whatever the merits of such a prohibition, it seems likely to touch upon a significant amount of employment tribunal cases brought against HEIs – at the very least, the highest value cases and those that carry with them the highest reputational risk.
Given that a significant incentive to settle for employers is the security of knowing that they have the benefit of confidentiality provisions in any COT3 or settlement agreement, this change seems likely to decrease the likelihood of settlement, lest a claimant seeks further vindication in the court of public opinion and the employer has lost the chance to defend and exculpate itself publicly during a final hearing.
Interaction with other employment law and equality duties
Notwithstanding potential jurisdictional issues, the risk of adverse costs in the courts make them unpalatable for many claimants compared to the employment tribunal. It seems likely therefore that, if possible, claimants will seek to use the existing framework of the Employment Rights Act 1996 and the Equality Act 2010 and bolster them where appropriate with arguments built on the duties contained in the HE Act (and with reference to the Convention).
One argument that a potential claimant may seek to run in an unfair dismissal claim is that a HEI cannot be said to have acted reasonably pursuant to s.98(4) ERA if, in doing so, it has breached its duties under the HE Act (or indeed if, in doing so it has impermissibly interfered with their Convention rights). They might also say that a HEI has otherwise not acted reasonably, for example, not given a reasonable instruction to them because the instruction was itself a breach of the duty to secure free speech or their academic freedom.
Furthermore, if our hypothetical claimant is said to have unlawfully harassed a colleague and is dismissed for it, they might argue that the HEI did not properly apply the objective element of the harassment test in s.26(4) EqA by giving insufficient weight to its duties under the HE Act (or the Convention). Another relevant angle may concern indirect discrimination: a claimant may assert that the HEI’s PCPs are not objectively justifiable because the HE Act duties (and their Convention rights) have materially tipped the analysis in their favour.
These arguments are untested in litigation, but we believe that they are likely to be run by claimants in appropriate cases and HEI employers should be mindful of them, lest they fall into error by not properly considering how employment law interacts with the HE Act.
Conclusion
Employment lawyers certainly need to take note of the HE Act. With the culture war on campus showing little signs of abating, we expect plenty of employment-related litigation to be brought as the parameters of this new law are scoped out.
James Murray and Simon McCrossan, University of Buckingham/Mishcon de Reya LLP and 1EC Barristers
KEY:
HE Act Higher Education (Freedom of Speech) Act 2023
HEIs Registered Higher Education Institutions
OfS Office for Students
E2A Education (No.2) Act 1986
Riniker R. v University College London Ex p. Riniker [1995] ELR 213
Johnson Johnson v Unisys Ltd [2001] UKHL 13
Erdogan Erdoǧan v Turkey (346/04 and 39779/04)
Kharmalov Kharmalov v Russia (27447/07) (2017) 65 EHRR 33
Convention European Convention on Human Rights
ERA Employment Rights Act 1996
EqA Equality Act 2010
