Another little layer of complexity to add to free speech deliberations

Much of the debate surrounding the Higher Education (Freedom of Speech) Bill has really been about where you (or indeed His Majesty's Government) stand on the line between freedom from harm and freedom of speech.

In many ways the core of the government’s position has been to attempt to tilt the see-saw towards the latter – but it does mean that when other government departments seek to strengthen protection from harm, we can end up with interesting interactions, both in principle and in the detail of the legal duties.

We saw this when the government’s Online Safety Bill first appeared, and now there’s a new crossover on the Venn diagram to get across – via the Worker Protection (Amendment of Equality Act 2010) Bill.

Back in August 2019 the government carried out a consultation on sexual harassment in the workplace – and while a commitment to taking action appeared in the 2021 response to that consultation, nothing manifested on the government’s agenda.

As a result Wera Hobhouse, Lib Dem MP for Bath, decided to introduce a Private Members’ Bill aimed at doing what the government said it was going to do – and that has pretty much forced ministers into backing the Bill, which having made its way through the Commons is about to reach second reading in the Lords.

The legislation does a couple of things. First, it imposes a specific legal duty on employers (including universities and students unions) to take “all reasonable steps” to prevent sexual harassment of their employees at work – and will make employers potentially liable for harassment of their employees by third parties (e.g. customers or clients).

If harassment is found to have taken place, employees could end up entitled to an uplift in compensation (up to 25 per cent) where there has been a breach of the duty – which can also be enforced by the Equality and Human Rights Commission.

These are important protections – although they do remind us of the iniquity of students not being afforded the same formal legal protections. Even if you don’t think that students should be regarded as employees, in countries like Sweden students are afforded specific rights on protection, safety and discrimination in the study environment that are equivalent.

Forthcoming positive duties on universities in this space in England via the Office for Students will likely move things in the right direction in this space – but won’t strengthen students’ individual rights.

Interestingly, there’s another bit to the Bill – employers become liable for the harassment of staff by “third parties” such as clients, customers, (or in the case of universities, students or guest speakers) if they have failed to take all reasonable steps to prevent harassment.

And that protection would apply to all acts of harassment at work when carried out by a third party – rather than just sexual. That’s something of a U-turn for the government – there used to be a third party liability provision in the Equality Act, but it got repealed in 2013 on the basis of its “unnecessary burden” on businesses.

For students working in a nightclub, this should be helpful – for student nurses working on placement, not so much. And for university staff that might be subject to harassment from students, there are obvious helpful dovetails here that relate to that new OfS duty.

But given the broadening of that third party liability thing to all forms of Equality Act harassment, could there also be a free speech issue?

You’ll recall that the “reasonable steps” line in the Higher Education (Freedom of Speech) Bill has been repeatedly used by ministers to signal a gateway into so-called “balancing” duties that might, on …. balance, cause a university to restrict speech or academic freedom after all.

Once students and guest speakers are in the frame as the sort of people that could, in their actions, subject staff to harassment – and once you have a duty to take steps to prevent that harassment – you can see why universities and their SUs might tilt a little back on that see-saw.

Naturally, there’s a little slice of complexity in there for free speech purposes. A university (or a students’ union) would not be in breach of the “reasonable steps to prevent” duty if it “did not seek to prevent the expression of [an] opinion”.

But for that to apply, all of this has to apply:

  • A third party (so in our case a student or guest speaker) harasses a member of staff in the course of their employment;
  • That harassment falls within section 26(1) of the Equality Act (unwanted conduct 15 related to a relevant protected characteristic) and not within section 26(2) or (3) (unwanted conduct of a sexual nature etc);
  • The conduct constituting the harassment involves a conversation in which the staff member is not a participant, or is a speech which is not aimed specifically at the staff member;
  • The conversation or speech involves the expression of an opinion on a political, moral, religious or social matter;
  • The opinion expressed is not “indecent or grossly offensive”, and the expression of the opinion does not have the “purpose” of violating the staff member’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that staff member.

The point is that if a university or SU (reasonably) thinks that any of the above applies, the exemption that’s designed to allow free speech doesn’t kick in – and so then you have your “balancing” clash with the Higher Education (Freedom of Speech) Bill.

The position seems reasonably straightforward for academics – although plenty of staff and students who are opposed to other academics’ views wont see it like that – but is likely to be more complicated when we come to think about the alt-right shock speakers that tour the country having been invited to campus by “edgy” student societies ostensibly to wind up other students.

The various bits of law that are now being balanced on the back of the campus donkey are all becoming a bit like a game of Buckaroo – ideally joint guidance will emerge from the Office for Students and the Equality and Human Rights Commission on how this new item can placed on the back of the donkey without it kicking off.

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