UK: Enhancing Academic Freedom – Workers' Rights And Human Rights

The Government's proposals to strengthen academic freedom and free speech on campus have come under heavy fire since their release.

The majority of the criticism has focused on two objections: that there is no problem whatsoever (a position with which I disagreed here); and, that the imposition of stricter regulatory control by the OfS and the introduction of the 'Academic Champion' will negatively impact upon institutional autonomy, an undoubtedly essential aspect of academic freedom.

Supporters of the Government's proposals have responded to the second criticism by arguing that the institutions themselves are restricting the academic freedom (in particular the academic freedom of speech) of individuals who occupy minority areas of academia, e.g. conservatives and gender critical feminists.

The argument then follows that, in such circumstances, the Government is entitled to intervene to re-balance the interaction between institutional and individual academic freedom in favour of the individual. At several points in the proposals, the Government makes it clear that they are intended to support individuals in instances where their academic freedom is restricted (either actively or through self-censorship) by their institution.

The legitimacy of this aim is difficult to dispute. The European Court of Human Rights (ECtHR) has been forceful in its support of academic freedom of speech as a fundamental human right:

The importance of academic freedom of speech to liberal society also provides a second justification for intervention, alongside the survey data of the UCU and Policy Exchange which have identified issues in practice on campus. Namely, if the constitutional and legislative protections for academic freedom in the UK lag behind other advanced nations, then improvements to such protections are a good in themselves for such an important human right. Research published by the UCU suggests that such protections in the UK are in a particularly poor state.

With that in mind, do the Government's proposals provide for a new legal framework which ensures an individual has a sufficient and effective right of recourse against their institution if their right to academic freedom of speech is infringed? For several practical and legal reasons, I do not think they go far enough.

At paragraph 119, the Government states that individual academics can rely upon contractual and employment law remedies if their institution dismisses or causes them a detriment in breach of contractual terms which purport to give strong protection for academic freedom. Such clauses are generally also accompanied by strict contractual disciplinary procedures which must be followed before an academic is dismissed. The focus of Proposal 7 is to ensure consistency of such contractual protections in terms of the level of protection and the scope of individuals to whom they apply, e.g. visiting fellows as well as employees.

However, there is a real risk that a dismissed academic, who seeks to bring a claim on the basis of a breach of a contractual academic freedom clause or disciplinary procedure, falls foul of the Johnson v Unisys exclusion zone (as applied by the Supreme Court to contractual disciplinary procedures in Edwards v Chesterfield Royal Hospital). In essence, this prevents an employee from recovering damages for losses suffered as a result of terms of their employment contracts as to the manner of their dismissal being breached because Parliament has already established an unfair dismissal framework in the Employment Rights Act 1996.

In other words, while breach of a contractual disciplinary procedure will likely be a factor in deciding whether a dismissal is unfair, it does not give a right of action in its own right and the academic must still work within the unfair dismissal regime, with its tight claim deadline, capped compensation and requirement for two years' continuous service.

This poses a particular problem for academics who have not yet achieved that level of service, which is increasingly difficult in an industry which is leaning towards short-term, insecure employment at its junior end. It seems reasonable to infer that a lack of appropriate protection for such individuals could have a chilling effect on the things they are willing to say, teach or research professionally.

The introduction of a specific statutory 'Day 1' right to bring a claim before an Employment Tribunal in circumstances where an individual has been dismissed for exercising their academic freedom would remedy the problem of the Johnson exclusion zone, and would be consistent with the Government's aim of ensuring a high level of protection for all academics exercising their academic freedom. This right could either simply disapply the qualifying period (cf. dismissals related to political belief or affiliation), or be a new ground for automatic unfair dismissal (cf. whistleblowing protection).

In doing so, the Government would also be ensuring that remedies could be accessed by the comparatively cheap and straightforward employment tribunal, and could ensure that rights to re-instatement or re-engagement also apply.

Perhaps the most significant virtue of this approach is the opportunity to define the concept of academic freedom, its limits and its interactions with other legislation such as the Equality Act 2010. This is an opportunity for the Government to bring home and gold plate the very high levels of protection afforded to academic freedom of expression by the ECtHR.

For example, a maximal level of protection may give an academic absolute freedom to express, perform or associate themselves with any statement or act, irrespective of its medium or context and whether or not it may bring their employer into disrepute, which questions, proposes or tests ideas, or evinces controversial, political or unpopular opinions.

The limits of this can then be carefully circumscribed to carve out, e.g., criminal offences, intellectual property rights, confidentiality protections (etc.), from the scope of the protection. At this point the interaction with the Equality Act 2010 could be addressed, for example the harassment provisions could be given a different threshold or test in academic freedom cases.

My view is that the above suggested approach would complement the statutory tort in Proposal 6 and give workers in particular a significant boost both to the extent of their legal protection, as well as the practical benefit of enforcement in the employment tribunal. The statutory right could be clearly defined and aimed specifically at protecting against dismissal or detriment in the employment sphere.

The scope of protection afforded to workers through a statutory tort based on s43 is, to my mind, unnecessarily unclear and convoluted. If the tort was associated with the current duty of taking reasonably practicable steps to secure free speech within the law, then I suspect the bar of showing a breach of the duty in respect of any particular dismissal case would be set too high for the right to have much practical value to individual academics.

If the s43 duty were amended (see Proposal 3) to include a duty to actively promote freedom of speech within the law, then this problem would be mitigated to some extent as showing that a dismissal was a breach of the duty would be easier.

However, even with the s43 duty being strengthened, some potential issues still remain:

1. What does "freedom of speech within the law" mean? The ECtHR case law gives significant protection to academic freedom of speech, but there is a potential tension with the Equality Act 2010 which has not yet been confronted by the English courts so it is difficult to know precisely where the boundaries lie. As suggested above, at least for workers, the Government could take the opportunity to define academic freedom of speech and its limits carefully so as to ensure an appropriate level of protection for the fundamental human right which the ECtHR identified.
2. What does "actively promote" mean? Presumably, in any given case, a court would have to decide whether a particular academic's dismissal was a breach of a duty to actively promote freedom of speech. I do not think it is axiomatic that a dismissal which would breach the individual statutory right I sketch out above would always be a breach of a duty to "actively promote" freedom of speech. It would be open, I think, for the institution to legitimately take into account wider circumstances and the effect of the dismissal on others at the institution.

For example, an institution might seek to justify a dismissal on the basis that what the individual was saying was inimical to free speech generally (e.g. advocating that certain groups should speak less) or that what they were saying was oppressive to certain groups such that their freedom to speech freely was being impugned. In either case, there may be enough grounds to say that the institution had actively promoted free speech overall, at the expense of a particular individual's free speech.

Overall, the Government's proposals are clearly aimed at improving the individual rights of academics and make good progress in that regard. For the reasons above, I believe this could be better achieved with the addition of a statutory 'Day 1' right not to be dismissed or subject to a detriment because of a legitimate exercise of academic freedom of speech.

To my mind, there is a question mark over how effective an Academic Freedom champion would be for the average academic coming up against restrictions on their academic freedom - not least, would there be sufficient resourcing to handle all such complaints? If there is a chilling effect at play on UK campuses, then the knowledge of having a clearly defined and robust employment right could help to change the culture. If there is not such chilling effect, then at the very least the UK will take steps to improve the poor state of its legislative protections for academic freedom, as identified by the UCU.

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