Navigating Free Speech in Modern Day HE

How to manage controversial conversations on campus

James Murray

Legal Director, Doyle Clayton Solicitors

Gaza and Israel. Sex and gender. Immigration and small boats. Race and equity. “Wokism”. These are all highly emotive and controversial topics – and ones which are very hard to avoid in the media, on socials and even among friends. 

It is perhaps inevitable, then, that these issues come up in a work or campus context and it is, even more inevitable, that people vehemently disagree about them and are offended – perhaps deeply – by the views of others. How should human resources and managers on campus manage such controversial conversations?

The legal framework

Well, first, they need to be mindful of the legal framework that governs both speech and equality issues on campus. 

Universities have a proactive and wide-ranging duty to take reasonably practicable steps to secure free speech within the law and, from 1 August 2024, academic freedom. They also have obligations under human rights law not to unlawfully interfere with rights to freedom of expression and religion and belief. 

For academics exercising their academic free expression (i.e. expression flowing from their academic work and/or their professional competence or expertise), these rights are some of the strongest under the European Convention on Human Rights.

There are also complementary rights and duties under the Equality Act 2010. In particular, one of the protected characteristics – in relation to which discrimination or harassment of students and staff is forbidden – is philosophical belief. 

As manifestations of protected beliefs can also be protected, this protection is often used as a vector for what are essentially free speech cases, i.e. an employee has said something offensive at work or online and was dismissed. Deciding whether any particular manifestation is protected is tricky – see below.

The range of potential protected beliefs is very wide. Of the views above, we already know that gender critical and gender identity beliefs are protected, as is opposition to critical race theory. It also seems likely that Zionism / anti-Zionism may amount to protected beliefs, as might general opposition to what is (usually disparagingly) called “woke” ideology. 

Of course, the Equality Act 2010 also covers other protected characteristics (e.g. sex, race, religion, gender reassignment, etc.) and protects them in the same way against discrimination and harassment. On top of that, Universities need to comply with the public sector equality duty, which requires them to have due regard to the need to eliminate discrimination and foster good relations between those who share competing protected characteristics.

Circling back, a key caveat to free speech duties on campus is that speech which is not “within the law” is not covered. If speech amounts to harassment under the Equality Act 2010, then it will be unlawful. This is another tricky area – see below. 

There are also a wide range of offences under the criminal law which could feasibly apply (though in my experience are relatively rare in a campus context and even harder to safely rely upon because of the high criminal burden of proof). These include acts intended or likely to stir up hatred on grounds of race or religion under the Public Order Act 1986 and inviting or encouraging support for a proscribed terrorist organisation (like Hamas) under the Terrorism Act 2000. Additionally, certain extreme speech – such as Holocaust Denial or incitement to terrorist activity – will not be protected under human rights law.

Applying the law

Second, HR and managers need to apply this law knowledgably and carefully. Given the potential for controversy in discussing the topics listed above, there is a good chance – if they come up – someone will complain that they have been deeply offended and there will be cause for a grievance and/or disciplinary action. 

This is the danger zone for institutions – how do you prevent or punish potential discrimination or harassment against the complainant while ensuring you don’t discriminate against the respondent or breach your free speech duties?

Fortunately, there is some helpful guidance on approach from the tribunals. 

If the speech in question amounts to unlawful harassment, e.g. it has the purpose or effect of – in relation to a protected characteristic – violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, then it will not be protected. As it will generally be hard to show the required intent to harass, one will normally have to consider the effect of the conduct. 

Here there is an objective test, which takes account of relevant context. The strength of free speech protection on campus – and the reluctance of the tribunal to protect hypersensitive claimants – means that it will be hard to show that harassment has occurred.

If the speech in question is a manifestation of a protected belief – and assuming it isn’t unlawful harassment – then you can only interfere with it (e.g. by imposing a disciplinary sanction) if to do so is proportionate in all the circumstances. 

In practical terms, an institution should be confident that the alleged wrong justifies any intervention and, if it does, should look to adopt the least intrusive sanction (e.g. a written warning rather than a dismissal) sufficient to remedy the alleged wrong or its impact. In doing so, it needs to weigh up the following factors:

– The content of the manifestation and the tone used

– The extent of the manifestation;

– The worker’s understanding of the likely audience; – the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business; 

– Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; 

– Whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon; 

– The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and

– Whether the limitation imposed is the least intrusive measure open to the employer.

This is not an easy assessment to make, but an institution may face a claim of discrimination from the person complained about if it imposes a sanction without properly ensuring that the speech in question isn’t a manifestation of a protected belief.

Policies and procedures

Third, HR and managers should set down clear processes and expectations in social media policies, codes of conduct and grievance / disciplinary policies. These need to be drafted in an extremely careful way so that they are respectful of the extremely robust protection for free speech on campus, especially for academics exercising academic freedom. 

In conclusion, tread very carefully when managing disputes over controversial conversations on campus. Both sides may appeal to the Equality Act and the respondent is likely to appeal to their free speech rights; these potential conflicts need to be managed delicately and in a thoughtful way. 

We are seeing more and more Equality Act speech cases centred on protected beliefs and August will see the arrival of the Office for Students’ new free speech complaint scheme; HR and managers should act to ensure they are not the next high profile test case in this developing area of law.

For more information or advice, please contact James on jmurray@doyleclayton.co.uk

This blog is provided for informational purposes only; it should not be relied upon as legal (or other advice). Legal advice in relation to your specific situation should always be sought.

Check out other articles from AHEP

Member Spotlight: PgCert Success
Back in the mists of …
AHEP Annual Conference 2024 Connecting, Reflecting and Reinvigorating
Having attended a number of …
Member Spotlight: PgCert Success
'The PGCert was something that …