A tale of two processes
A closer look at the Freedom of Speech Bill and its belief for students
The Freedom of Speech Bill, published on 12 May 2021, demonstrates the Government’s focus on freedom of speech and its belief the Office for Students is best placed to regulate in this space. The proposals include: a duty on HE providers and student unions to secure and promote freedom of speech and academic freedom; a Code of Practice requirement; protection for University staff from any adverse effects arising namely, loss of job or likelihood of securing promotion or another job at the same provider. Complainants may refer action/inaction by the governing body, breaches of duty and other issues to the OFS under the proposed new Free Speech Complaints Scheme (Schedule 6A 2(3) and 3(3)).
The scheme in the draft Bill requires students to exhaust the internal procedure before making a referral. In addition, the OFS will not accept a referral if the complainant has brought the same subject matter to the Office of the Independent Adjudicator (OIA), through the student complaints scheme. The operation of the proposed new OFS Complaints scheme could create confusion for students seeking redress to complaints including freedom of speech and related matters because the scheme also refers to the inclusion of “other” complaints to the OFS. The practical aspects of this and the role of the OIA is not clear. There may be confusion for students seeking redress to complaints including freedom of speech and other matters. In effect, following the internal complaint decision on a freedom of speech complaint, the student may consider they have a choice should they remain dissatisfied, the OFS or the OIA. Perhaps unsurprisingly, the OIA have raised concerns about clarity for students on the choice this presents and the confusion it may cause, matters they first raised in response to the Government’s February Command Paper.
How will this ‘choice of forum’, to put it in legal terms work? Complaints identified by the complainant as freedom of speech issues for the OFS can arise when a request for a platform is refused. The Bill requires the University to take reasonably practicable steps to achieve the objective of securing freedom of speech. In practice, this decision may be determined by health and safety requirements for the event. Risk assessments may identify significant security concerns and the consequential cost of adequately policing the event may be important considerations leading to a refusal. If a complaint has been refused on health and safety grounds within the University internal complaints process, then a referral the OFS, as a freedom of speech complaint, appears to be a straightforward choice for the complainant.
Where to refer a complaint is less clear when the student raises freedom of speech as part of a wider complaint. It is not unusual for complaints to reference, dissatisfaction with the quality of supervision, adverse impacts on health, attainment, future career prospects, student experience etc. One scenario would be a student who receives negative feedback from a supervisor, for example, that the student’s academic work contained discriminatory undertones. The student complains they did not develop the work as a result and believe their academic performance and career prospects have been compromised by the supervisor’s approach. The student complains they felt unsupported on the course and unable to discuss their academic work with fellow students because of the supervisor’s approach. If their student complaint is not upheld by the university, where should the student take the complaint next, OFS or the OIA? It will be difficult to disaggregate a freedom of speech complaint from a service related complaint about the conduct of a member of staff and the additional, related claims. Service aspects of such a complaint would normally fall within the OIA’s remit. In the draft Bill Freedom of speech complaints are matters for the OFS, but would service claims meet the definition of ‘claims other than those described’ in Schedule 6A of the Bill?
Involving both bodies would risk duplication and potentially ‘res judicata’ issues if the same aspects were to be considered twice by different administrative bodies. The appropriate forum for the complaint should avoid giving a student two attempts at achieving a resolution and avoid the process becoming protracted. To involve the OIA and OFS would incur duplication of cost for the University in dealing with and sharing information with both adjudication bodies.
In order to act in the interests of students, greater clarity is needed on both the approach the OFS will take to other claims it will hear and how it will ensure consistency of outcome and awards to students with OIA findings on equivalent matters. Clear guidance for students on the selection of OFS or OIA as the appropriate point of referral will be essential.
This article focuses on the choices and potential confusion students may face. There is a further question which HR Directors and senior managers will be keen to understand. Namely, what ‘claims other than those described’ in the relevant paragraphs of the Bill will the Office for Students hear and arbitrate on when a provider’s staff member brings a complaint about free speech or academic freedom? It will be interesting to see how this OfS process operates with respect to ‘other claims.’ An Employment Tribunal claim would need to be based on some discriminatory aspect or adverse impact on the employment relationship. However, where staff are able to identify a free speech or academic freedom aspect to their grievance, this new process could provide an alternative low-cost route.
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