Following a tip-off, CAF has written to a Russell Group university over concerns about the way unlawful harassment is being presented in mandatory Equality, Diversity and Inclusion training. We have decided not to name the institution at this stage, in the hope that it will engage constructively and make the necessary changes to bring its materials into legal and regulatory compliance.
Our concern is not with the fact of the training. Quite apart from the Public Sector Equality Duty, which requires public bodies to have due regard to the need to eliminate discrimination, Condition E6 of the Office for Students’ conditions of registration adopts the definition of harassment in section 26 of the Equality Act 2010 and requires universities to give effect to that definition in their policies, procedures and staff training.
The problem is that the training misstates it, presenting harassment as though it can be determined largely from the perspective of the complainant while omitting two essential elements of the statutory test: “the other circumstances of the case” and whether it is reasonable for the conduct to have had the alleged effect. Those omissions are precisely what prevents the law from collapsing into a pure test of subjective offence.
The practical consequences of that misstatement become clearer when the training turns to protected philosophical belief, using gender-critical belief as its representative example. Here, the module retreats to a familiar – and false – formulation: the holding of gender-critical belief is protected, but its manifestation is merely “permitted”. That framing is also one-sided, since it presents gender-critical belief chiefly as a source of legal risk, without recognising that those who express such beliefs may themselves be subjected to unlawful hostility or detriment.
It is true that the law draws a distinction between holding a belief and manifesting it: the former is absolute, the latter qualified. But it does not follow that manifestation is merely a matter of employer permission, or that the expression of a protected belief is presumptively suspect in the workplace.
The ambiguity lies in what is meant by “permitted”. Is the suggestion that manifestation is to be allowed unless there is a legally sufficient basis to restrict it – that is, unless objection to the manner of manifestation can be justified having regard to the rights of others under Articles 9 and 10 of the ECHR, as reflected in the case law? Or does “permitted” in practice mean no more than that expression will be tolerated only so long as it does not cause distress to other staff members?
Set against the perception-based definition of harassment given earlier in the training, the latter appears to be the operative standard. That impression is reinforced by the language used elsewhere in the module, where terms such as “harmful” and “inappropriate” behaviour, together with concepts such as “microaggressions”, are introduced without clear definition or any meaningful linkage to the statutory framework. The result is a diffuse and elastic standard of harassment, detached from the legal test it purports to explain and tethered to whoever takes the greatest offence.
That is barely an exaggeration. Training of this kind is designed to shape how staff interpret and respond to everyday interactions, and the course actively encourages monitoring and intervention, including the suggestion that “non-action implies implicit agreement with the perpetrator”. The predictable result is over-reporting, with routine exchanges that fall well short of the statutory threshold nonetheless being drawn into formal complaint and disciplinary processes.
Nor is the point confined to gender-critical expression, since that belief is used here as a representative example of protected philosophical belief more generally. If this approach were applied across the range of beliefs currently recognised as protected, it would authorise an impermissibly broad curtailment of lawful expression on campus by reference to managerial discretion.
We think there is a good chance of effecting change here. The impact on campus is bad enough in itself, and senior administrators will no doubt be mortified and keen to resolve the issue. But, just in case they are inclined to dither, we have also made clear that the error carries real legal risk for the university itself.
As our letter explains, where staff respond to lawful expression by initiating complaints, informal interventions, warnings or disciplinary processes – or through hostile or derogatory conduct in ordinary workplace interactions – employees may be subjected to detriment on a basis that does not meet the statutory threshold. In those circumstances, the university may be vicariously liable under section 109 of the Equality Act 2010, unless it can show that it took all reasonable steps to prevent the unlawful conduct.
Training is ordinarily central to that defence. But, as the Employment Appeal Tribunal made clear in Allay (UK) Ltd v Gehlen, it is not enough for an employer simply to point to the existence of equality training. A tribunal will examine what that training said, and whether it was capable of preventing the conduct in question. In Allay, training that had become ineffective over time was insufficient to sustain the defence.
The point was sharpened further in Fahmy v Arts Council England. There, the Tribunal held that an anti-harassment policy which omitted protected belief from its list of protected characteristics, together with the absence of suitable staff training on protected beliefs, meant that the employer could not establish the section 109(4) defence.
With that in mind, CAF has urged the university to revise its materials in several targeted respects, including: to amend the definition of harassment so that it reflects the full statutory test in section 26; to rewrite the formulation that protected belief may be “held” but only “permitted” to be manifested, so that it no longer implies that lawful expression is a matter of managerial discretion; and, if gender-critical belief is retained as an illustrative example, to make clear that the law protects those who may be subjected to hostility or detriment for expressing such beliefs lawfully in the workplace.
CAF is keen to hear, in confidence, from staff or students who have encountered similar material in their own institutions. If you have concerns about how harassment or EDI training is being presented, we can offer advice or, where appropriate, make representations on your behalf.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.