The OU reflects on the Phoenix tribunal findings

Before Nicola Dandridge was a sector grandee, late of the Office for Students, Universities UK, and the Equalities Challenge Unit, she was a lawyer.

A very good lawyer – she was The Times’ lawyer of the week in May 2005 because of her work on one of the landmark cases on pay equality: Starmer vs British Airways PLC.

She has, in other words, done the hard yards when it comes to discrimination and higher education and as such is probably one of the most qualified people to write a report on the Open University, EDI, freedom of speech, and the aftermath of the Jo Phoenix tribunal.

If you are not up to speed on the Phoenix case, my colleague Jim wrote up the verdict and narrated the entire saga in the process. In a nutshell: Jo Phoenix set up the Open University Gender Critical Research Network, and aspects of the response from inside and outside the institution, including from within the OU management structure, were found to be discriminatory on the grounds of her protected gender critical beliefs.

Specifically, the tribunal found that Phoenix’s complaints of direct discrimination, harassment, constructive dismissal, wrongful dismissal, and post employment victimisation, because of gender-critical beliefs, were well-founded.”

Not every claim made by Phoenix was upheld, and she withdrew a claim for indirect discrimination. But the OU apologised, and committed to undertaking an independent review of its internal working environment – which is what we now have before us.

The remit

Dandridge’s remit asked to examine the university’s approach to academic freedom, on managing disagreement between staff members who hold “profoundly different and conflicting views”, on behavioural standards. Recommendations would focus on “policies, practices, procedures, induction, training, leadership, and decision making”. She started off by opening up evidence submission to all staff, met with four groups (trade unions, staff who gave evidence at the tribunal, the OU Trans Staff Network, and the OU Gender Critical Research Network. She received written submissions from 48 (self-selecting) staff members, and met with 53 staff members online – and spent the summer reading about OY plans and processes.

Her recommendations – coming at the tail end of a detailed review of the law and the evidence she was presented with – are not, however, going to be the ones that change the world, or even (really) the Open University. It would be expecting far too much for a single report to solve an issue that seems to be playing out unstoppably within wider UK culture: in fact, the report doesn’t even have a specific remit to address that particular arguments between “gender critical” and “trans inclusive” (contested labels, of course, as Dandridge rightly points out) that animated the Phoenix case.

Seven principles

The primary recommendation is a set of underpinning principles for the Council and executive to agree to, and the establishment of a working group to make stuff happen. Here’s the seven principles that the OU is asked to discuss, tweak, and agree to, in headline form (there is more detail in the document itself):

1. Free speech and EDI should not be set in opposition to each other.
2. Open debate – including the expression of differing views including contentious views – should be welcomed and encouraged, providing it is within the law.
3. The expression of contentious views needs to be proactively managed
4. Alongside a general policy approach to EDI, there should be a specific focus on sex and gender, without obscuring the OU’s essential work in other equality areas
5. The legal principles (set out in section 3) should inform OU’s policy on sex and gender
6. The OU’s approach to the protected characteristic of belief should be distinct
7. As a general principle, the OUT should adopt a policy of institutional neutrality in relation to contentious issues (unless relevant to the OU’s strategy)

Other recommendations deal with the way these principles are put into practice, via a “task and finish” working group (from the people team, the unions, the EDI team, and an academic representative from Senate) who need to agree a timetable of work fairly promptly to be signed off by November 2024. This work includes the review and amendment of various policies and processes – including guidelines on self-expressing (“bringing their authentic selves to work”), addressing templates and polices that refer to gender rather than sex where this would cause an issue with Equality Act descriptions. A lot of this, in fact, is about terminology.

Work cut out

You’ll perhaps recall one of the points of contention within the Phoenix case was an “open letter”, signed by various members of OU staff. For this kind of thing, the university will develop standards of behaviour (in line with the pre-existing values in action initiative) supported by mandatory training offered to staff, and additional mandatory training offered to managers in order to help oversee it. Cap this with a system of free speech promotion, linked projects and initiative, and the need for a decent evaluation of the whole thing, and it feels like our working group has its work cut out.

And herein lies the problem with this report – it mandates a lot of very difficult work, that to my mind has never been successfully done anywhere ever, and then adds a tight timeline, reporting lines, and a full evaluation. To be clear, it puts the whole suite of problems under the ownership of the very senior end of the OU, which is arguably where it should be – but as to clues regarding how we square a commitment to diversity and inclusion with a full-throated noisy avowal of free speech absolutism we are left bereft. The stuff about terminology is the easiest part, which conversely makes it the hardest part.

The eyes of the sector and the nation will be on this project – if there is a way through this ontological knot (particularly one that can be navigated with the nearest minimum of bad tempered shouting) it will be copied and reimplemented everywhere. And it looks, from this perspective, heartbreakingly impossible.

Dandridge’s remit did not extend to students or the student voice – this is primarily a corrective administered to the grown-ups in the room – but it does feel like a student body as large, diverse, and thoughtful as the Open University might have something to add to deliberations. If you were expecting unexpected agreement and tolerance to emerge from any part of the university, students feel like a much more likely substrate than professional staff or academics.

This article was updated on 3 October to clarify the exact nature of the judgement of the employment tribunal that heard Jo Phoenix’s case.