Case Studies

Students at provider A participate in a seminar discussion concerning governing divided societies. During the discussion, student B lawfully expresses a controversial position relating to minority groups. 

Following the seminar, student C publishes repeated comments on social media attacking student B, tagging them in the posts and encouraging other people to post responses to student B to tell them what they think of their views. Student C’s speech is so extreme, oppressive and distressing that their course of conduct may amount to harassment as defined in the Protection from Harassment Act 1997. 

Provider A learns of the activity. It carries out an investigation of student C under its social media policy, which forbids unlawful online harassment. In doing so, it is unlikely that provider A has breached its ‘secure’ duty. 

Members of provider A make a request to invite speaker B to talk at an online event about the cause of nationalist struggle in country C. Provider A carries out checks on the speaker and learns that speaker B has made repeated statements professing to be a member of proscribed organisation D in another jurisdiction. Provider A rejects the request citing the prohibition on inviting proscribed groups under section 12(2c) of the Terrorism Act 2000. 

Professor A at University B attempts to run a seminar series and a conference to explore issues of sex and gender. Professor A holds gender-critical beliefs: the belief that biological sex is real, important, immutable and not to be conflated with gender identity. Gender-critical beliefs are protected beliefs for the purposes of the Equality Act 2010. 

Following protests about ‘transphobia’ from staff and students, the university requires her to cancel the seminar and the conference. Because of her gender-critical beliefs, the head of Professor A’s department instructs her not to speak to the department about her research, about a cancellation of her invitation to another university, or about the accusation that she is a ‘transphobe’. 

In acting in this way, University B may have directly discriminated against Professor A. It is also likely to have breached its ‘secure’ duty. In doing this it is unlikely that provider A has breached its ‘secure’ duty. This is because it is unlikely that the measure is affecting lawful speech. 

Academic A witnesses what they consider to be sexual harassment by manager B against employee C. Employee C brings a complaint against B and A agrees to be a witness in the complaint. Manager D approaches A and explains that if they continue to support employee C in their claim A’s request for research leave is unlikely to be approved. 

Depending on the facts of the case, the actions of D may victimise A as the threat to withdraw research leave may be a detriment to their employment as a result of a protected act. The detriment is likely to censor the speech of A and interfere with their academic freedom (for instance, by preventing them from pursuing research). 

Reasonably practicable steps in this instance will likely include enabling A’s full participation as a witness in the complaint and considering the request for research leave on its merits. 

A Jewish student puts up a mezuzah on their university accommodation doorpost. Following complaints from students alleging the symbol is politically provocative, the university requires the student to remove it to ‘maintain harmony’, and in light of the need as stated in the Equality Act ‘to foster good relations between persons who share a relevant protected characteristic and persons who do not share it’. The university does not assess whether the restriction was necessary or proportionate, nor does it consider that the student’s freedom of speech includes a right to religious expression. 

By prioritising objections from other students over lawful expression, the university is likely to have failed to take reasonably practicable steps to secure freedom of speech within the law and therefore to have breached its ‘secure’ duty. 

More generally, providers and constituent institutions should take appropriate steps to address any chilling effect. For instance, frequent, vociferous and intrusive anti-Israel protests across campus, including outside lecture blocks and accommodation, may have a chilling effect on pro-Israeli speech or Jewish religious expression. Students may self-censor support for Israel, and Jewish students might be chilled from expressing their religious beliefs on campus. Regulation of the time, place and manner of such protests may be a reasonably practicable step to take to secure the speech of students. 

A requirement that protestors should not intrude into classrooms, or attempt to shut down debate and discussion, is suitably neutral as to the viewpoint expressed. By contrast, a requirement that protests should not express views that undermine the university’s values, may unlawfully suppress the expression of a particular range of viewpoints. 

A university lecturer in maths uses his lectures not to teach maths but to express his political views at length (but within the law). University B disciplines A because of the time and place 

of this speech However, it does not investigate, discipline or otherwise sanction the lecturer for expressing those views (again within the law) on social media. 

In taking these steps it is unlikely that B has breached its ‘secure’ duty. The lecturer’s speech is preventing an essential function of the university, in this case teaching. Therefore it is unlikely to be a reasonably practicable step to permit the speech. 

Dr A proposes to invite speaker C to university B on a regional war. Speaker C is strongly on one side of the issue on which they have been invited to speak. There are many international students at University B, including many from the region affected. Because of this, University B is concerned that the event may contribute to an atmosphere of religious and political tension on campus. However, there is no evidence that the event creates any immediate and specific threat to physical safety. Nonetheless, B refuses permission for the event. 

Depending on the circumstances, University B may be in breach of its ‘secure’ duty. There is no direct and specific threat to physical safety from Dr C’s lecture. Physical safety concerns are therefore less relevant to the reasonable practicability of permitting the event. 

In relation to broader concerns about the atmosphere on campus, University B might have taken steps short of refusing permission to Dr A. For instance, it might have offered additional seminars that take other perspectives on the same issue. It might have created additional platforms for constructive dialogue between speakers on both sides. It might have offered support to students who were affected by issues raised in the event. In taking these other steps, University B would have been unlikely to have breached its ‘secure’ duty. 

Professor X has accepted an invitation as a visiting lecturer at University A. Professor X proposes to deliver a set of lectures on religion. Following the invitation, A is made aware of (lawful) public statements by Professor X that are strongly critical of Islamic attitudes towards women’s rights. These statements themselves provoke strong reactions from some student groups and staff networks. University A rescinds the invitation on the grounds that it is ‘antithetical to the value we place on inter-faith understanding’. There is no evidence that X’s lectures could include unlawful speech. 

University A has not taken the step of permitting X to deliver the lectures. This step would have secured Professor X’s speech. It is likely to be irrelevant to whether this step is reasonably practicable that X has endorsed, or may express, a viewpoint that is inconsistent with A’s values or unpopular among students and staff. University A is likely to be in breach of its ‘secure’ duty. It should now take the reasonably practicable step of renewing Professor X’s invitation. 

A postdoctoral researcher, A, publishes a paper accusing Shakespeare of ‘systematic racism’ based on an analysis of the sonnets. It is clear and accepted by all parties that A’s speech is lawful and does not violate any lawful regulations or restrictions at A’s university, B. 

A national newspaper accuses A of attacking a great national figure. It mounts a campaign calling for A to be fired. After two weeks of unnecessary delay, the vice-chancellor of B issues the following statement: 

‘University B regards free speech as a fundamental value that is at the heart of everything we do. This extends even to views that we consider wrong and that many in our community reject. The views of A do not represent the views of university B. University B is proud of Britain’s literary heritage.’ 

The vice-chancellor of B did not intervene for two weeks. This period of uncertainty may itself have penalised A. Depending on the circumstances, the statement may have undermined A by criticising their position. The statement was not explicit that University B would not punish A. In these circumstances a clear, prompt and viewpoint-neutral response may have been a reasonably practicable step that University B should have taken. 

A lecturer, Dr C, writes a blog strongly defending the rights of trans people and claiming that these rights are under attack from activists. It is clear that C’s speech is lawful and does not violate any lawful regulations or restrictions at C’s employer, College D. 

Dr C’s speech provokes an intense response on social media, including widespread calls for C to be fired. Dr C’s employer, College D, immediately issues the following statement internally, to the wider university community and publicly: 

‘College D will not limit the views expressed by its staff or students beyond what the law prevents. College D will not require any apology from, or take any action against, its members, staff or students for their lawful expression of any viewpoint.’ 

This statement is likely to be helpful. It is prompt, categorical and neutral as to content. Depending on the circumstances, the statement may reduce pressure on Dr C. College D is likely to have taken some of the reasonably practicable steps that it should have taken to secure academic freedom for Dr C. There may be other reasonably practicable steps that College D should take. 

University A requires all candidates for academic promotion to submit a 500-word statement of evidence of commitment to equality (or equity), diversity and inclusion (EDI). 

Depending on the circumstances, this requirement may be restricting the lawful expression of certain viewpoints. For instance, a lecturer might be sceptical of some aspects of EDI and may be deterred from applying for promotion, or may be refused promotion, as a result. Removing this requirement from promotion processes is then likely to be a reasonably practicable step that University A should now take. 

University B takes positive steps to encourage members of underrepresented races to apply for promotion. For instance, it invites members of those groups to special events related to promotion. It also publicises successful role models from within those groups. All applicants for promotion are evaluated solely on merit. 

Assume that in the circumstances, the steps taken are a proportionate means of encouraging more people with a certain protected characteristic to apply for promotion and that, in the specific case, the steps are lawful under the Equality Act. 

In taking these actions it is unlikely that University B has breached its ‘secure’ duty. 

A member of catering staff at University A writes to the local newspaper lawfully expressing pro-life views. Students at the university start a petition to have the member of staff fired. Following an investigation, University A fires the staff member on the grounds that there are students who claim to feel unsafe because of the staff member’s continued employment. 

Depending on the circumstances, this is likely to have been a breach of University A’s free speech duties. This is because there was nothing to suggest that the staff member’s speech was unlawful or that it violated any lawful regulations or restrictions at A. For instance, claims that the staff member’s employment makes others feel unsafe are not, by themselves, enough to make that member’s speech unlawful. In these circumstances, retaining (and not disciplining) the staff member is likely to have been a reasonably practicable step that University A should have taken. Reinstating the staff member may now be a reasonably practicable step that University A should take.