New Clause 5 - Unfair dismissal

Higher Education (Freedom of Speech) Bill – in a Public Bill Committee at 3:45 pm on 22nd September 2021.

Alert me about debates like this

“After section A6 of the Higher Education and Research Act 2017 (inserted by section 3) insert—

“A7 Unfair dismissal

An employee who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is any act or omission which contravenes the duty in section A1.””—

This new clause ensures that employment tribunals have jurisdiction to hear claims relating to the duty in section A1.

Brought up, and read the First time.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

I beg to move, That the clause be read a Second time.

Photo of Judith Cummins Judith Cummins Labour, Bradford South

With this it will be convenient to discuss new clause 13—Unfair dismissal in violation of academic freedom—

“(1) A member of academic staff of a higher education provider who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is any act or omission by the provider which contravenes the duty in Section A1.

(2) For the purposes of dismissals under subsection (1), Section 108(1) of the Employment Rights Act 1996 (Qualifying period of employment) shall not apply.

(3) Notwithstanding Section 124 of the Employment Rights Act 1996 (Limit of compensatory award etc.), there shall be no limit on the level of compensation that can be awarded in cases of unfair dismissal in violation of academic freedom.

(4) Section 128 of the Employment Rights Act 1996 (Interim relief pending determination of complaint) shall apply in cases of dismissals under subsection (1).”

This new clause would render a violation of clause 1 in employment practice as unfair dismissal, regardless of the period of employment at a higher education provider, with no cap on the level of compensation. Interim relief would be available to complainants in such cases.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

New clause 5 would ensure that employment tribunals had jurisdiction to hear claims relating to the duty in new section A1 of the Higher Education and Research Act 2017. This Bill has been introduced in part because of the high-profile instances of academics being dismissed. Many of the controversial examples have involved extramural speech rather than research or teaching, which again emphasises the importance of our earlier discussion grappling with the proper ambit of protection of academic freedom

The Committee will recall that Kathleen Stock, who gave oral evidence, faced calls for her dismissal due to her gender critical views. In 2019, we heard about Sarah Honeychurch, a lecturer who was sacked as editor of the academic journal Hybrid Pedagogy after signing an open letter to The Sunday Times criticising LGBT training in universities. What legal remedy do such academics currently have? One may argue that higher education providers, as public authorities, could be judicially reviewed, but judicial reviews are often prohibitively expensive, particularly for junior academics. Moreover, judicial review does not ordinarily review the merits of an decision, but more usually involves consideration of whether the correct procedures have been followed, which may still not capture some of the mischiefs identified by the Government before introducing the Bill.

Crucially, there is a real risk that, even if they were able to pursue a claim in the High Court, a dismissed academic may not be able to claim dismissal-related losses if they were dismissed due to an exercise of their lawful free speech and academic freedom. In the case of Johnson v. Unisys Ltd, the House of Lords took the view that the clear intent of Parliament was that dismissal-related cases and claims of a similar nature

“should be decided by specialist tribunals, not the ordinary courts of law.”

That is why I have tabled this modest but hugely significant amendment. We must ensure that those who have been dismissed due to the exercise of academic freedom have an appropriate route of challenge in the employment tribunal—a venue that has the relevant specialisms to deal with dismissal claims, recognising the spirit of and understanding the letter of the law the Bill will introduce. Employment tribunals also have appropriate procedures to simply and significantly reduce the cost burden of claims, especially when compared with the complexity and expense of claims in other proceedings, such as judicial review proceedings.

It may be argued that employment tribunals already deal with claims concerning free speech and that is correct, but invariably such claims must be linked to a protected characteristic, in particular freedom of religion or belief, which has a very specific meaning in equality and discrimination law. I anticipate that most academics would not ordinarily be able to argue that their academic viewpoint springs from their philosophical or religious beliefs, and nor should they have to. Academic freedom is there to ensure that academics have the space to rigorously test and develop new ideas. Dismissal on that basis ought to qualify for specific and special protection with meaningful remedies.

The amendment would address that problem and is consistent with evidence we heard, such as the recommendations from Tom Simpson, who said, for example,

“would seriously support considering introducing the employment tribunal as the first court to consider cases of dismissal in that situation, in addition to the existing measures in here.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 72, Q149.]

I spoke about the Bill to associate professor in the faculty of law at Oxford, Paul Yowell, and I thank him for his time. He particularly emphasised how important he considers such an amendment. I take the opportunity to refer colleagues to his Policy Exchange paper published in the last few days, “The Future of Equality”.

In his evidence, Professor Goodwin astutely pointed out:

“If the current system with regard to sacking and dismissal were working, we would not be having this conversation. We would not have had dozens of academics appearing in the newspapers. There was another one this weekend from the University of Bristol who was accused of being Islamophobic. The university had ruled that he was not Islamophobic, but had none the less removed his course in response to student satisfaction.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 96, Q195.]

He said “satisfaction”, but I think it might have been dissatisfaction. In any event, the academic’s course was removed in response to comments from students.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Like the right hon. Member for South Holland and The Deepings, the hon. Lady obviously reads a lot into individual cases that are highlighted in the press. I have some sympathy with her new clause, but it would not prevent people from being appointed. People would find other reasons for debarring people from applying. Could she address the issue of tenure? Employment tribunals deal in contract law—contracts between individuals—but tenure is slightly different. Would the new clause require a change to the way tenure is given to academics?

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

That may require some consideration, but as I am sure the right hon. Member knows, tenure is attained only after very many years of often insecure academic life on the part of academics, and that is one of the issues of which we need to be acutely aware when looking at the Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am aware of that, but if somebody who has tenure is dismissed from a university because of their views, they would not actually be protected by new clause 5. Although I agree with what the hon. Lady is trying to achieve, it may be difficult to achieve because of the issues around tenure.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

I am not entirely taking the right hon. Gentleman’s point—it probably requires some reflection on my part—but I thank him for raising it, and no doubt the Minister might do the same.

Professor Nigel Biggar noted that

“appeal to the courts is expensive and risky. It seems to me that academics who have lost their job ought to have readier access to lodge a complaint than through the courts.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 31, Q62.]

I hope the Minister will consider my comments.

Photo of Matt Western Matt Western Shadow Minister (Education)

I understand the points that have been made by the hon. Member for Congleton, and I appreciate the sentiment, but I disagree with how new clause 5 is worded, because implicit in its words is quite a narrow conception of unfair dismissal. New clause 13 is broader and affords greater protections, and I hope that the hon. Lady will support it.

Several witnesses underlined why the inclusion of employment law provisions in this conversation is so important. When questioned by my hon. Friend the Member for Brighton, Kemptown on whether employment law would be a better basis for defining some of these rights, Professor Stephen Whittle responded with a categorical yes. In her evidence, lawyer Smita Jamdar said:

“there are often cases where there is a very vigorous disagreement about whether something was an exercise of academic freedom or not when it relates to criticism of the institution.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 57, Q110.]

Employees need the full protection of the law, which is what new clause 13 seeks to provide. Employees would not have to conform to the stringent requirements for bringing an unfair dismissal claim—usually, a two-year qualification period and a range of reasonable responses test, which is construed broadly, often in favour of the employer. They also would not be subject to capped damages awards. There was cross-witness support for this, including from Thomas Simpson, who said:

“I would seriously support considering introducing the employment tribunal as the first court to consider cases of dismissal in that situation, in addition to the existing measures in here.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 72, Q149.]

On Second Reading, Danny Kruger said:

“We should allow academics to appeal not just through the civil law but to an employment tribunal if their academic freedom is restricted.”—[Official Report, 12 July 2021; Vol. 699, c. 76.]

New clause 13 is actually an extrapolation of new clause 5. We think that it is broader.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I have a lot of sympathy with this, but will my hon. Friend address the issue of tenure, which is quite a unique employment status. Will it be covered by new clause 13?

Photo of Matt Western Matt Western Shadow Minister (Education)

I am not a lawyer. I would hope that it would be, but my hon. Friend may well be right that it may not be covered. That would be its intent. The concern is about the vulnerability of academics in terms of their tenure and whether they will have the protections that others already have.

I hope the amendment covers that. If it does not, then perhaps this is something we should revisit. I hope the hon. Member for Congleton will recognise that our new clause is an enhanced version of what she is proposing and vote with us.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education) 4:00 pm, 22nd September 2021

New clauses 5 and 13 seek to provide that a dismissal and breach of the new section A1 duty is specifically to be treated as an automatically unfair dismissal under the Employment Rights Act 1996. New clause 13 further seeks to disapply the two-year qualifying period for unfair dismissal in these cases, removing the limit on the level of compensation that can be awarded and applying provisions allowing claimants to seek interim relief, pending determination of their claim.

Let me be clear that the Bill does not stop employees in higher education from taking their claims to employment tribunals. In doing so, employment tribunals may consider questions of freedom of speech and academic freedom and alleged breaches of the section A1 duty in that context, although the Bill does not give them the jurisdiction to hear freedom of speech cases.

The current two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am very interested in what the Minister just said. It is clear that an employment tribunal can be held on sex discrimination grounds or on other grounds, but could she point out in present employment law where it states that someone would be able to bring an industrial tribunal on the basis that they were discriminated against because of freedom of speech? I am not aware of such a law.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

As I said, tribunals cannot take a freedom of speech case per se, but if there were evidence of discrimination on the grounds of freedom of speech in the case that they were taking, that could be heard. I can come back to the right hon. Gentleman with the details of that after the Committee, but I cannot point out the exact line of the legislation on the spot.

Photo of Kevan Jones Kevan Jones Labour, North Durham

As I understand it, an industrial tribunal case could not be taken on the grounds that someone had been dismissed because their freedom of speech had been infringed. That is a problem that came out in the evidence. A tribunal could be brought on the basis of sex discrimination and for other reasons, but if the sole reason for a tribunal was that someone thought they were being dismissed because of their views and that their freedom of speech was being questioned, I am not sure such a tribunal would have jurisdiction over that, given present employment law. If the Minister does not know, I am happy that she writes to the Committee.

Photo of Michelle Donelan Michelle Donelan Minister of State (Department for Education) (Higher and Further Education)

The point I am trying to make is that an employment tribunal will determine whether a dismissal was fair or unfair, depending on the specific circumstances of the case. Therefore, it may take into account breaches of academic freedom of speech. The Bill does not amend employment law in this regard and we do not think it would be appropriate to make dismissal because of a breach of the new duties an automatic unfair dismissal.

The Bill does, however, give new protections to academic staff, including those who may not have employee status or who have been employed for less than two years. It therefore broadens the scope of the current provision section 43 of the Education (No. 2) Act 1986, to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging, without the risk of losing their post.

The Bill provides new specific routes of redress for those without employee status, including a complaints scheme operated by the Office for Students and a statutory tort. I hope that Members are reassured that the Bill strengthens protections for academic staff and employees. It expands the range of available routes of complainants and ensures that a wide range of individuals are able to secure redress.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

I hear what the Minister says, as well as the comments from other Members, but there is still a lack of clarity. The Minister said that an employment tribunal will decide if a dismissal has been fair or not fair, and may take into account academic freedom.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

The emphasis here is on “may take into account”, in my hon. Friend’s words. The important thing is that those tribunals understand both the spirit and letter of the law that the Bill will become, and that the context that she set out is well understood by all concerned.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

The Government might want to continue to consider this issue as the Bill progresses.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am now a bit confused by what the Minister has said. Tribunal cases are done on case law. I am not aware of any case law in which unfair dismissal has been upheld on the basis of a freedom of speech issue, so I am at a loss as to what the Minister has said. However, I agree with the hon. Lady that this is something that needs to be looked at in detail on Report.

Photo of Fiona Bruce Fiona Bruce Conservative, Congleton

I agree; the Government should consider the matter in the light of the nature of academic contracts, which have been discussed in the course of the Committee’s proceedings.

I will not press new clause 5 to a vote, but I do ask the Minister to consider the matter carefully and to be aware that it is likely that colleagues in the House may want to revisit it as the Bill proceeds. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.