HE employers and their advisors will need to assess the impact of two significant employment tribunal decisions about senior academics and their protected beliefs. Both claims were partially successful, though for different reasons. They will now proceed to separate remedies hearings.
The first decision to be published involved Joanna Phoenix, who was a professor of criminology at the Open University. The core of her claim was that she had been harassed by her employer because of her gender critical beliefs, essentially because they had not done enough to protect her from actions taken by academic colleagues who viewed her beliefs as inherently discriminatory. Some, but not all, of the incidents she relied on were found to be acts of harassment for which the University was liable. She was also successful in her claim for post-employment victimisation, because the University ended the investigation of her grievance after she had issued tribunal proceedings.
Two weeks later came the judgment in Dr David Miller’s claim against the University of Bristol. He was a professor of political sociology and was dismissed by the University following tweets expressing his anti-Zionist views. The tribunal found that his dismissal was an act of discrimination and had also been unfair. However, the tribunal concluded that he had been 50% to blame for his dismissal, and that there was a 30% chance that the University could have dismissed him fairly, had it acted reasonably in implementing the disciplinary process.
Both decisions are long and complex, both factually and legally – far too long to do them justice in the space of a blog. Both involved academics with beliefs that were challenging to many and offensive to some and which were found to be protected under the Equality Act. But there the similarity ends. At the risk of oversimplification, Joanna Phoenix was under attack by her academic colleagues, and the tribunal judged that her employers had not done enough to protect her. On the other hand, in Dr Miller’s case, the University was regarded as having crossed the line in the way it disciplined him for expressing his controversial but well-researched views which troubled many of its Jewish students.
If there is a common lesson from both cases, it is that HE employers need to strive to be dispassionate about beliefs of this kind, especially so where principles of academic freedom are engaged. The right to hold protected beliefs is absolute, but the right to express them is qualified: ie employers are entitled to put restrictions on the expression of these beliefs where these are required to fulfil their legal obligations and are necessary in a democratic society to protect the rights and freedoms of others. That involves a challenging balancing exercise, and both these cases illustrate how difficult it can be to get that right.
Since the law was clarified in the Grainger case more than 10 years ago it will be rare for a belief to be excluded from protection merely because it is potentially offensive. This means that educational institutions are being expected to manage a working environment where clashing beliefs are expressed on a range of controversial issues, without completely shutting down one side or the other.
HE institutions will be acutely aware of these obligations at the moment, with the implementation of the Higher Education Freedom of Speech Act imminent (see our earlier post here for more information).
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