Jo Phoenix wins tribunal case against the Open University

The full decision of the employment tribunal in the case concerning Jo Phoenix v The Open University has been published.

The tribunal found that Phoenix was discriminated against and harassed because of her gender-critical beliefs – and that she was constructively dismissed.

It wasn’t a comprehensive win – Phoenix both withdrew a claim for indirect discrimination, and also advanced various issues that were “not well founded” and so dismissed.

But put it all together and the lessons for universities are not hugely different to those distributed by legal firms in relation to the Maya Forstater case.

Employers including universities have be mindful of the kind of workplace culture they want to promote, need to strike a fair balance between allowing freedom of speech or opposing beliefs, and need to ensure employees have a safe environment that is free from discrimination and harassment.

Balancing what can feel like competing demands remains complex in practice – and as ever with decisions made by tribunal, no legally binding precedents are set.

But given how high profile the case has been, it does give the sector a sense of how a tribunal is likely to interpret the law around freedom of speech, academic freedom and the conflicts over sex and gender that seem to dominate coverage of the campus culture wars.

Background

Jo(anna) Phoenix was a Professor of Criminology at the Open University. Known for her research on sex, gender, and justice, she took the OU to an employment tribunal over what she said was a “public campaign of harassment” that made her working life unbearable.

That harassment, according to Phoenix, began when she expressed views about the silencing of academic debate on trans issues, criticised Stonewall’s influence in universities, expressed views that male-bodied prisoners should not be in female prisons, and set up the Open University Gender Critical Research Network.

As a result, Phoenix claimed she was publicly vilified by hundreds of her colleagues, called transphobic, compared to a racist by managers, and silenced and shunned within her department.

The Equality Act 2010 defines a protected belief as any religious or philosophical belief, including a lack of belief – and in this case, both parties agreed that most of Phoenix’s beliefs align with the “gender-critical beliefs” that were the issue in the Forstater case.

A “philosophical belief” has to meet specific criteria including being genuinely held, relate to a substantial aspect of human life, have a certain level of seriousness, cohesion, and importance, and be worthy of respect in a democratic society.

Phoenix’s beliefs included a now-familiar list:

• Biological sex is real and important.
• A person cannot change their biological sex.
• Biological sex should not be confused with gender identity.
• There are situations where biological sex is more important than gender identity, especially concerning the safety of women, such as in the context of housing male individuals in female prisons.

Interestingly, the OU argued that it was possible that Phoenix’s gender-critical beliefs might amount to harassment or discrimination in and of themselves – but as it didn’t suggest any specific act, the tribunal concluded that there was nothing about them that amounted as such on the facts of this case.

The judgement does note that the right to freedom of expression comes with duties and responsibilities, and can be subject to limitations over public safety and the protection of rights and reputations.

It also emphasises a tribunal case that considered the extent to which an employer can restrict an employee’s manifestation of religious beliefs – where factors like the content, tone, extent, and impact, as well as the nature of the employer’s business and any power dynamics – are considered in the assessment.

Harassment or direct discrimination

The meat of the judgement is a list of nineteen alleged acts of harassment – including a long list of emails, statements, social media activity and university processes related to a grievance, all and each of which is assessed on the basis of whether each amounted to harassment or direct discrimination.

There’s a lot of detail that legal firms and HR departments will be pouring over in due course, partly because of the nineteen issues, thirteen were found to be “well founded” over harassment, two were found to be well founded over direct discrimination, while others were out of time or not well founded.

So for example, the first item on the list concerns a comment made by a (Deputy) Head of Department in a meeting with Phoenix that included “comparing her to a racist uncle at the Christmas dinner table”.

There’s quite a bit of preamble and context surrounding the event, but ultimately the tribunal considered that it was unwanted conduct related to Phoenix’s gender-critical beliefs – it found that the said Professor believed Phoenix’s views caused divisiveness, and she was effectively “telling her off” for having expressed those beliefs.

It also concluded that the purpose of the comment was to violate Phoenix’s dignity – because inherent in the comment was an insult of being put in the same category as racists. In those circumstances the complaint of harassment was “well founded”.

Silence and treatment

Not all of the allegations were as straightforward. One of the issues concerned a departmental meeting in which Phoenix reported that she’d been due to give a seminar on prisoner officer recruits and trans prisoner placement – but following protests had the seminar cancelled. Phoenix said that had been met with a “cavernous silence”.

At the same meeting, Phoenix reported being included in a Canadian medical board research grant of $1M and got no praise, while someone did get praise for writing a grant application.

The tribunal found that neither amounted to harassment – it might have been unwanted conduct to have experienced silence, but the tribunal couldn’t conclude that the purpose or effect of that unwanted conduct was to violate Phoenix’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her.

But the tribunal did find that Phoenix experienced a detriment due to the silence and a lack of praise – particularly in comparison to a colleague who received recognition for their grant application. It considered it directly discriminatory.

Open letters

One particularly complex bit of the judgement that is right at the nexus of free speech, academic freedom and harassment or discrimination concerns members of OU signing and/or publishing an open letter.

In 2021 the “Open University gender-critical Research Network (GCRN)” had been set up by Phoenix and colleagues, focused on promoting research from a gender-critical perspective. Several complaints and criticisms emerged, with some finding a related podcast offensive and insensitive towards trans people.

The tribunal found the podcast did not cross the line of acceptability, disagreeing with claims that it was demeaning or belittling – and while it recognised some comments in the podcast lacked sensitivity, it did not interpret them as outright hostility towards trans individuals.

What followed, however, was a problem – a Google Doc entitled “Open Letter from OU staff – Response to the launch of the gender-critical Research Network” was published and signed by 368 OU staff and researchers, calling for the withdrawal of the OU’s support for the GCRN and asserting it conflicted with OU’s obligations under the Equality Act 2010.

The tribunal found that the open letter was not an exercise in academic freedom, but rather stigmatised Phoenix and aimed to damage her reputation. It also found it to be aimed at countering gender-critical beliefs.

Phoenix found the letter humiliating and shocking (as it represented public condemnation by her colleagues) and found that the letter’s publication and the number of signatories created a hostile environment for Phoenix, impacting her ability to express gender-critical beliefs and conduct research:

There was certainly no need to publish the document online, it just contributed to the pile on. We therefore consider that publication of the Open Letter was conduct that created an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. If we are wrong about that, we consider that the effect of the publication was to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.

…The content of the Open Letter painted the Claimant as saying prejudicial statements against trans gender people when the Claimant did not say any statements that were prejudicial to trans gender people and publishing that to the world, would objectively have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. We find the Claimant’s complaint under [this issue] is well founded.

What’s clear is that where expression by other members of staff that was about Phoenix’s beliefs had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, the tribunal tended to find her claims well founded.

The tribunal later found that the OU’s failure to respond directly to Phoenix’s concerns of harassment was unwanted conduct, and concluded that the failure to act was related to Phoenix’s gender-critical beliefs – and that while that was not intended to violate her dignity or create an intimidating environment, it was due to a fear of a faction within the OU and being seen to be gender-critical:

We find that the [OU] was fearful of outwardly being seen in any way to support the members of the GCRN including the Claimant in case it was seen as support for gender-critical beliefs. We find that academic freedom did not prevent [the OU] from saying that there was harm being caused to members of the GCRN including the Claimant. This would have been a balanced approach.

Culture and rules

There are now several cases that suggest that employees are generally entitled to hold gender-critical beliefs – and while that doesn’t mean an employee holding those beliefs can be free to deliberately upset or incite others, it doesn’t mean that they can be targeted for holding them either. The message is that if behaviour is to be justified as academic freedom, it must at least be respectful of other people’s beliefs.

It’s worth remembering that this case didn’t actually feature much in the way of student activism at all – but there’s no doubt that universities in England (and SUs where they are employers) will need to consider carefully the way in which they “police” the conduct of students to both meet the requirements in the free speech act (which asks free speech codes to apply disciplinary procedures to secure compliance and prevent silencing) and the implied requirements here, which very much look like needing to clamp down on some campaigning or activist conduct to prevent harassment and discrimination.

We find that … tweets … were directed at the Claimant, and we find that the reference to transphobic and TERF is associating the Claimant directly with a transphobic and TERF network both of which are terms of insult about gender-critical beliefs. Whilst we accept that the historical use of TERF was not inherently an insult, the term used … [in[ retweets is a term of insult.

We find that this tweet was in breach of the Respondent’s bullying & harassment policy, under 2.1 where it refers to written harassment as derogatory name calling.

Ever since the Kathleen Stock case came to prominence, the question for those considering student or staff campaigning on EDI issues has been what happens when those campaigns concern not legislation, the actions of governments, external incidents or national controversies – but instead target for opprobrium the activities or pronouncements of individual academics.

Arif Ahmed may be determined to stay silent on the interaction between harassment and free speech pending a complaint, but inside the regulator the still-not-concluded OfS case interrogating Sussex over Stock, and the imminent publication of its new requirements over harassment both may need to take into account the case.

Some will attempt to argue that rulings like this give bigots cover if they behave in an “academic” way. But the judgement here suggests that whatever academic or speech related “freedoms” that students and staff think apply, and whatever harm they believe some students or staff come to as a result, a university has a duty to protect its own from being “piled on”-to unlawfully when they believe something that is controversial but is…

…genuinely held, related to a substantial aspect of human life, has a certain level of seriousness, cohesion, and importance, and be worthy of respect in a democratic society.

Whether, in the context of the past few months, some manifestations of “genuinely held” beliefs underpinning pro-Palestinian activities that some feel fall foul of the IHRA definition of antisemitism are similarly protected, will be an interesting test for the future.

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Tim Blackman, vice chancellor of the OU, said the university was disappointed by the judgment and would consider whether to appeal. He said:

We acknowledge that we can learn from this judgment and are considering the findings very carefully.

We are deeply concerned about the wellbeing of everyone involved in the case and acknowledge the significant impact it has had on Prof Phoenix, the witnesses and many other colleagues. Our priority has been to protect freedom of speech while respecting legal rights and protections.

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Following publication of this piece on Friday 26th January 2024, Tim Blackman/the OU issued the following statement, announcing a “major independent review” of the OU’s internal working environment:

This judgment made for difficult reading for all of us. In several areas we fell very short. We apologise unreservedly to Professor Phoenix for the hurt and distress this has caused.

This is not The Open University we want to be.

The University has supported and continues to support the work of the Gender Critical Research Network (GCRN) as part of the many important research activities that take place  at the OU. But our understanding of academic freedom and freedom of speech at the time meant we did not intervene about the open letter, statements and social media posts that followed the GCRN’s launch. The tribunal ruling makes it clear that we should have acted differently to address the impact of this reaction on Professor Phoenix and the working environment that she experienced.

We are sorry that this has been a painful episode for many colleagues. Research and academic debate are the life blood of universities. They are not at odds with inclusion, and we will find a path that encourages diversity of thought and views in the inclusive environment we all want to see at the OU. We have learned from the judgment and there is now more we need to do. The experience and outcome of this case will guide us with this important and essential work.

We will be initiating a major independent review of our internal working environment. This will include addressing the challenge we and the sector face balancing the complexities of upholding academic freedom, freedom of speech, and equality and employment rights. It will help us to work together to ensure those with differing views are safe and free to express their opinions within the law.

Achieving our mission to be open to people, places, methods, and ideas depends on us all at the OU committing to take forward this learning and to treat each other with civility and respect however profoundly we may disagree.