Academic freedom must include the right to criticise employers

England’s free speech bill should outlaw gag orders that stifle revelations of bad practice, says an anonymous author 

July 16, 2021
A man holds paper in front of his mouth, symbolising non-disclosure agreements
Source: iStock

Earlier this week, England’s Higher Education (Freedom of Speech) Bill received its second reading in Parliament. But while the focus of the debate has been on students’ alleged habit of no-platforming speakers they disagree with, my concern as an academic is that the platform itself is rotten.

Recently, I made a series of whistleblowing disclosures about some colleagues who were carrying out experiments with animals. The colleagues retaliated by submitting a complaint about me, and the organisation’s response was to reject my disclosures and open a disciplinary case against me.

The case against me was rejected by an independent investigator, but the report was altered after submission, with a clear intent to dismiss me. Those alterations were ultimately cancelled when I got wind of them, but my professional role was then unilaterally changed to a different field without my knowledge.

So I submitted an employment tribunal claim for detriment on account of whistleblowing. But the organisation not only rejected my claim but also – and this is where freedom of speech comes in – applied for a “restricted reporting order” on the tribunal proceedings.

The only variety of gagging order that is more restrictive than the one I am under is the one forbidding the divulgement of its own existence. Neither I nor anyone else can say anything about the tribunal proceedings. That is why I have to write this piece anonymously.

The restricted reporting order was granted in part because of alleged risk of harm to individuals from animal rights activists. Yet the nature of the case is such that such a contention would have been ridiculous even 10 years ago, when animal rights terrorism was still fresh in the memory.

Candidly, the tribunal also believes that I am unlikely to prove that the detrimental acts resulted from whistleblowing. But why should I not even be allowed to air the acts in public? The detriments I have suffered are, after all, very serious. They include breaches of union-agreed internal procedures, Acas rules, contractual agreements and other legal obligations. I wasn’t even allowed to see the allegations that initiated the disciplinary hearing against me, never mind dispute the facts. And I only found out that my job role was changed when I saw my position re-advertised on a job site immediately after the gag order was put in place.

By that time, the pandemic had hit and I was on furlough. I was not consulted about that decision, either – and nor was I told that because I was not on a public grant, I wouldn’t get an extension of my funding to take account of the Covid-related disruption.

Regardless of the cause, these were substantial, career-destroying breaches of natural justice. There are many more instances I could list, too, but, taken alongside other information, they might allow you and other taxpayers to discover who squandered their money in ways I am not allowed to describe.

Restricted reporting orders are, of course, a matter for tribunal law. However, I believe that it is appropriate for the government to legislate to promote for a culture of transparency. Such a culture would make organisations much less willing to behave badly and to fight so hard to cover their tracks in the aftermath of doing so. Without transparency, institutional autonomy is always likely to be abused by those with power and inside knowledge – especially when there are no shareholders or ministers to answer to (not directly, at least).

While the ability to express an opinion of one’s organisation is implicit in the Higher Education (Freedom of Speech) Bill, the government should take the opportunity to make this explicit. The law should specifically state that the definition of academic freedom in English law includes “the freedom of staff and students to express their opinions in relation to the higher education provider” – an amendment the Australian government has also recently proposed. There is a sound reason to protect privacy and well-being of researchers, as unexpected adverse effects do happen in animal experiments. But allowing reputation-obsessed institutions discretion to decide who among their staff can say what about them does not seem likely to cultivate a system that encourages ownership of mistakes. Secrecy and cover-up breed more abuses; if I had spoken out after the disciplinary fiasco, for instance, the later contract and furlough fiascos wouldn’t have happened. But I did not realise then how compromised the system is.

Like many others, I am concerned that legislation may not be the best approach to addressing free speech on campus. However, if we must have the bill, the amendment I suggest would do much to improve the situation.

If this opportunity is ignored, I would ask who the bill is supposed to be for. As an academic, I am less concerned about free speech for visiting provocateurs than freedom for staff from bullying, corruption and bad faith.

The author is obliged to remain anonymous.

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Reader's comments (2)

This is really interesting and I am sorry that you have had such an awful experience. I have a simple question, but one that I appreciate you may not be able or willing to answer. Is the organisation concerned a university? (The only reason I ask is that I am currently writing a book, The University-Charity, that investigates the consequences of charitable status for universities - it might be a useful account (albeit anonymous) to incorporate, if so.)
"The only variety of gagging order that is more restrictive than the one I am under is the one forbidding the divulgement of its own existence." In Australia last year a Federal Court judge described a similar scenario - which he labelled "Kafkaesque" - when examining the case of a professor who'd been dismissed following complaints and sanctions. See "Peter Ridd and the French Review Connection" for details.

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