Following tip-offs from supporters, the Committee for Academic Freedom (CAF) has intervened with both a prestigious UK university and a leading learned society over concerns that their harassment and conduct frameworks have been drafted in ways that encourage an unlawfully broad approach to protected speech and professional disagreement.
We have decided not to name either institution because, in both cases, we are engaging constructively and hope to secure the changes necessary to bring their respective materials into legal and regulatory compliance. Once those discussions, and any relevant internal processes, have concluded, we hope to report further on the changes made to better safeguard freedom of expression and protected belief within those academic and professional settings.
Our concern is not with the fact of the training or the existence of conduct rules as such. Public bodies are subject to the Public Sector Equality Duty, which requires them to have due regard to the need to eliminate discrimination and harassment. In the case of English universities, Condition E6 of the Office for Students’ conditions of registration also adopts the definition of harassment in section 26 of the Equality Act 2010 and requires institutions to give effect to that definition in their policies, procedures and staff training. Nor is there any suggestion that universities or professional societies cannot hold staff and members to high standards of conduct.
The difficulty arises when policies and training materials reproduce the broad language of section 26 while presenting harassment as though it can be determined largely from the perspective of the complainant, omitting two essential elements of the legal test: “the other circumstances of the case” and whether it is reasonable for the conduct to have had the alleged effect. Those safeguards are precisely what prevent harassment law from collapsing into a pure test of subjective offence, potentially dragging into its orbit routine disagreements, clumsy jokes, awkward seminar or conference exchanges, or lawful expressions of protected belief that are increasingly treated as apt for reporting, investigation or escalation into formal processes.
The practical importance of those contextual and objective safeguards in assessing alleged harassment was illustrated in Richmond Pharmacology Ltd v Dhaliwal, where Underhill J, as he then was, observed that “dignity is not necessarily violated by things said or done which are trivial or transitory” and that, while it is important to be sensitive to the hurt caused by discriminatory comments or conduct, it is “also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase”.
As presently drafted, however, and in slightly different ways, the two frameworks we reviewed risk giving members of their respective communities the impression that offence, distress or disagreement can do too much of the operative work. Neither makes sufficiently clear that decision-makers must also consider the context of the alleged conduct – including the setting of the exchange, the relationship between the parties, whether the conduct was targeted or persistent, whether it formed part of lawful professional discussion, and the seriousness of the language used – and whether it is reasonable for the conduct to have had the alleged effect.
In practice, that may encourage over-reporting, create uncertainty for those tasked with receiving, investigating or determining complaints, produce inconsistent outcomes depending on how individual decision-makers weigh offence, context and professional disagreement, and chill lawful academic or professional discussion. Further downstream, it may also lead to contested findings of misconduct reached on a lower, or more subjective, basis than the civil law itself would recognise.
In the case of the university, we have also emphasised that this may create a degree of legal risk. Where staff respond to lawful expression – particularly in cases involving protected philosophical beliefs such as gender-critical belief – 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 the content of that training 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.
In broad terms, we have therefore urged both organisations to revise their policies, conduct materials and training guidance so that they state the section 26 test accurately, make clear that offence or distress alone is not enough, include more context-sensitive examples illustrating where conduct may be perceived as offensive without necessarily meeting the statutory threshold for harassment, and ensure that decision-makers consider context, objective reasonableness and the protection of lawful expression before complaints are escalated.
This kind of work often takes place out of public view, but it is becoming an increasingly important part of CAF’s wider mission. Protecting academic freedom does not only mean defending scholars after investigations, cancellations or disciplinary processes have begun, but scrutinising the internal policy architecture that shapes how lawful speech is interpreted, reported, stigmatised and escalated before such processes ever begin.
Both of these interventions began with tip-offs from people who had spotted problems in the materials their institution or professional body was using. We are therefore keen to hear, in confidence, from staff, students, members of learned societies or others in the academic community who have encountered similar concerns.
In particular, we are interested not only in public-facing harassment or conduct policies, but also in mandatory training modules, EDI courses, staff guidance, complaints procedures and third-party materials hosted behind institutional password systems.
If you are worried that your organisation’s policies or training materials risk encouraging an over-broad approach to harassment, protected belief or lawful professional disagreement, please get in touch at manager@afcomm.org.uk.
Confidentiality will, of course, be respected, and complete anonymity can be maintained where requested.
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.
Support CAF’s research, advocacy and casework defending academic freedom and free speech rights for staff and students across UK higher education.