Free Speech Union legal pressure forces Essex harassment changes

Case spotlights FSU’s influence and prospect of its mounting bigger legal actions against universities once free speech bill becomes law

June 7, 2022
Person inflates hot air balloon to illustrate Legal pressure from Free Speech Union forces Essex policy revisions
Source: Getty

A UK university has revised its policy on harassment under legal pressure from the Free Speech Union, spotlighting the organisation’s influence and the prospect of it mounting bigger legal actions against institutions if England’s free speech bill becomes law.

The University of Essex made what it described as two “minor revisions” to its “zero tolerance” policy after receiving pre-action letters – billed as preludes to potential judicial review – from the FSU, whose founder and director is the right-wing commentator Toby Young.

The Westminster government’s Higher Education (Freedom of Speech) Bill, recently carried over into the new session of Parliament, includes a “statutory tort” that would enable individuals to sue universities and students’ unions for compensation over breaches of free speech duties.

The FSU is likely to be the most prominent backer of such legal cases against universities if the bill becomes law, with its existing role in legal pressure illustrated by the Essex case.

Essex had previously amended its harassment policy after an external review that found that the university had breached its free speech duties in the cases of two academics, Rosa Freedman and Jo Phoenix, who were disinvited from speaking at the institution over their views on gender.

The FSU, represented by the law firm Kingsley Napley, first wrote to Essex in November 2021 to challenge what it saw as the university’s failure to fully implement the review’s recommendations.

Within that, the FSU challenged the harassment policy’s treatment of students as liable for harassment under the Equality Act 2010, which it argued would unlawfully restrict their free speech. Essex revised the policy this month to state that “harassment related to a relevant protected characteristic and undertaken by an employee or agent of the university may be unlawful under the Equality Act 2010”, removing the inclusion of students.

And on hate incidents, the Essex policy had previously defined these as incidents “perceived by the victim or any other person, to be motivated by hostility or prejudice” based on protected characteristics. After the FSU challenged the reliance on “perceived” prejudice, the revised version states that “where, following investigation and consideration of the evidence, an incident is found to be motivated by hostility or prejudice, the university will consider this to be a hate incident”.

Bryn Harris, the FSU’s chief legal counsel, said he hoped other universities would adopt Essex’s “sensible and encouraging approach”.

He added that while institutions “have a legitimate interest in prohibiting malicious or destructive behaviour”, they “must consider carefully their legal obligation to secure lawful free speech. The Equality Act does not apply in every situation, and does not provide a carte blanche.

“Universities need to start getting this right, or they face the likelihood of challenge by the likes of us and, in the future, regulatory intervention and even liability in damages once the [free speech] bill becomes law.”

An Essex spokesman said the university was “confident” that its approach to bullying and harassment was “within the law”.

“To ensure that the university’s policy is not susceptible to misinterpretation, the university has voluntarily reviewed the way we describe our approach to investigating incidents that may be motivated by hostility or prejudice and our application of the Equality Act,” the spokesman said.

“Minor revisions to the wording of the policy have been made to ensure that its original intent is even more clearly articulated, in a manner that remains lawful in a rapidly evolving legal context.”

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Reader's comments (2)

The disinvited academics wrote on 11 August 2021 in a joint statement: "We welcome the introduction of the new free-to-use complaints scheme under the Higher Education (Freedom of Speech) Bill but note the Office for Students would only be able to make non-binding recommendations. The new statutory tort will still involve academics putting their homes and wellbeing on the line to secure justice." And much else of interest - see Jo Phoenix's substack. It would be interesting to know what they make of the latest developments.
Freedom of Speech v. adoption of IHRA definition by UK HEIs (or even the JDA). What conflict?