How Should Institutions Mitigate Legal and Regulatory Risk Following the OfS’s Sussex Decision?

How universities can manage regulatory risk after the OfS Sussex decision

The dust has not yet settled over the Office for Students (OfS)’s report into the University of Sussex’s breaches of conditions E1 and E2 and the imposition of a £585,000 penalty fine. While the OfS has subsequently been writing to institutions over trans inclusion policies they consider similar to Sussex’s (even where policies have been removed from university websites pending review), Sussex has published its pre-action protocol letter challenging the OfS’s decision and the penalty.

Notwithstanding Sussex’s challenge to the decision, institutions across the sector will understandably feel obliged to ensure they are compliant with the OfS’s expectations, an exercise made more difficult because it remains unclear what the OfS itself considers compliant, not least because it has refused to provide a view on whether Sussex’s most recent iteration of its trans policy meets its expectations. Further, although the decision related specifically to a trans inclusion policy, the OfS’s findings highlight potential regulatory risks in relation to equality, diversity and inclusion policies more widely.

What should institutions do?

In light of the continuing uncertainty, we recommend that institutions take a two-pronged approach:

Triage published policies

The immediate first step is to review any relevant existing policies to address any existing areas of risk. This could be a difficult exercise, given rather opaque findings in the regulatory report and the OfS’s reluctance to give a definitive view on what they consider compliant in the balance between supporting staff and students with relevant protected characteristics, including protected beliefs, and freedom of speech/academic freedom more broadly.

However, the report makes a number of points to consider. For example:

• Words or phrases in policies that set out required or expected conduct on the part of staff or students which could be widely interpreted as restricting otherwise lawful expression are likely to be considered by the OfS to breach the public interest governance principles, because they may cause some individuals to self-censor. These types of phrases should be defined, refined, or removed.

• Universities should ensure that references to harassment include both the subjective and the objective elements of the test, in accordance with the Equality Act 2010 (i.e. that the individual themselves felt humiliated etc., and that it was reasonable in the circumstances for the speech to have that effect on that individual). The relevant circumstances include the institution’s duties to secure freedom of speech and academic freedom.

• Policies should sufficiently and explicitly address how they continue to facilitate freedom of speech and academic freedom, notwithstanding that they restrict certain types of behaviour or speech.

• Reference should be made to connected policies and procedures, such as wider EDI policies, the Code of Practice on freedom of speech etc., so that it is clear that the specific policy does not stand alone but must be read in the wider context of the institution’s commitments to freedom of speech, academic freedom, equality, diversity and inclusion.

Institutions may want to consider explicitly reflecting wording the new E6 condition of registration by highlighting that they are under legal and regulatory duties to have particular regard to and to place significant weight on freedom of speech, academic freedom and “tolerance for controversial views in an educational context or environment including in premises and situations where educational services, events and debates take place”. They could also set out the rebuttable presumption that “students being exposed to any of the following is unlikely to amount to harassment:

• The content of higher education course materials, including but not limited to books, videos, sound recordings, and pictures.

• Statements made and views expressed by a person as part of teaching, research or discussions about any subject matter which is connected with the content of a higher education course.”

Consider institutional approach to EDI guidance

The effect of the OfS’s decision is that institutions may want to check that their overall approach to EDI policies does not create unnecessary legal or regulatory risk. It would be prudent for institutions to ask themselves several questions:

Is a policy relating to a specific protected characteristic necessary, or could its provisions be incorporated into a wider EDI policy applying to all protected characteristics?

If a specific policy is necessary, what is the rationale for this? Has this exercise been carried out for all protected characteristics, so that there can be no suggestion of unequal treatment? Is there some specific legal or regulatory requirement to have the policy, or some clear evidence that the group in question experiences disadvantages or barriers that require measures or actions that can only be achieved by establishing a standalone policy? The Sussex report is frustrating in part because the OfS does not address that it has identified trans individuals (or those with specific other protected characteristics) as at risk in relation to access to and participation in higher education, where specific and targeted action may indeed be necessary including in matters such as curriculum design, expectations on academic staff, or action to reduce harassment or exclusion.

If a specific policy is considered necessary, does it go no further than necessary to achieve whatever purpose the policy is designed to achieve?

Are any restrictions or requirements imposed on other staff and students consistent with the institution’s obligations to secure their freedom of expression and academic freedom within the law? Is any interference in the rights of others proportionate to the goals the policy seeks to achieve?

If a policy is necessary, how will concerns and complaints raised under the policy be dealt with?

Complaints and concerns should be dealt with proportionately and it should be clear in the policy that this is the case. Disproportionate responses or actions by the institution could amount to a breach of its duties in relation to free speech, as raised in the OfS report, and in certain cases could also amount to unlawful discrimination if the complaint relates to another protected characteristic, as was the case in Higgs v Farmor’s School.

It would be highly regrettable if the OfS’s decision resulted in a diminution in visible commitment by institutions to necessary steps to address equality, diversity and inclusion. By taking steps to identify and mitigate any legal or regulatory risks posed by their existing approach, institutions should be able to move forward confidently in their important EDI work whilst robustly supporting and promoting freedom of speech and academic freedom.

However, this remains a highly complex area, and it is understandable that institutions may struggle to find the right balance in their competing obligations.