OfS issues penalty to University of Sussex for violating freedom of speech

Insight

14.04.2025

The Office for Students (OfS) has issued a regulatory case report for the University of Sussex, which explains its decision that the University has breached ongoing conditions of registration relating to management and governance, as well as its record monetary penalty. In response, the University’s robust pre-action letter explains its proposed challenge via judicial review and appeal. At the same time, the OfS has confirmed that it has written to a number of other higher education institutions (HEIs) with policies similar to those at Sussex, as well as inviting students to report similar free speech issues directly to the OfS.

In this article, experts from our Higher Education group reflect on the OfS's decision to issue the University of Sussex with a £585k penalty.

David Copping – Should HEIs brace for larger fines for breaches?

“My sense is that some form of ‘scalp’ was needed in relation to freedom of speech issues, and in some ways, this feels like an (unfortunate?) echo of the previous government’s agenda. Whether the penalty and the OfS’s overall approach will endure in light of threatened judicial review remains to be seen.

From a regulatory viewpoint, aspects which I think are worthy of further thought and analysis are:

The length of time it has taken to get to this point. We know that OfS investigations are taking a long time, and I would query whether in some cases decision-making/regulatory action could be challenged based on principles of natural justice. The University’s pre-action letter comments on the lack of direct contact and criticises the OfS’s investigation and decision-making process.
The fact that the OfS opted to impose a fine rather than another form of lesser regulatory enforcement action. Was requiring improvement through imposition of a specific condition really not an option?
The fact that part of the fine seems to have been amplified based on the purported duration of the proposed breach, as well as Sussex’s failure to report. But on this: the judgment calls involved were quite subjective, and was Sussex aware – and does it even agree – that it was in breach?

This raises the spectre of possible monetary penalties in terms of "hidden nasties" – things which HEIs are aware of but have (knowingly or not) not dealt with or raised with the regulator. Tied to this, there is a risk that this decision could prompt a wave of over-reporting.

The maths behind the fine seems quasi-scientific at best. The rationale is discussed in the case report but the discounting from £3.7m (after stage 3 of the OfS’s analysis) to £585k (as final stage 4 number) makes it all seem fairly arbitrary.

Depending on how the University’s challenge pans out, well-funded HEIs must now potentially brace for larger fines for breaches of the applicable conditions, particularly as Sussex seems to have been given some leeway as the first offender at stage 4 of the OfS’s analysis.”

Jeremy Isaacson – Should universities alter their approach to freedom of speech on campus?

“On a superficial level, the obvious action point would be to check the University’s policies to ensure that anything which reads similarly to the policies adopted by Sussex is reviewed. Unfortunately, updating these policies will not be as simple as simply deleting any problematic wording, nor is there an easy fix whereby all policies can simply be made "subject to" duties in relation to freedom of speech and academic freedom (because the more recent versions of Sussex’s policies included these caveats). It’s also important to note that the Sussex decision has been taken under the existing legal framework, and not under the Higher Education (Freedom of Speech) Act 2023, although I suspect this wouldn’t have made much of a substantive difference to the way the OfS approached the case.

Rather than rush to act, I would instead encourage universities to pause, at least until Sussex’s judicial review challenge and appeal to the First-tier Tribunal (in relation to the fine) have been litigated. Sussex’s pre-action letter suggests that there is fundamental disagreement about the role of the OfS in policing freedom of speech on campus and the proper understanding of what the law requires. I thought the assertions from Sussex at Ground D1 (that the University's Trans and Non-Binary Equality Policy Statement is not a ‘governing document’ and therefore not within the scope of the OfS’s regulatory regime) and at Ground D4 (which relates to the ability of universities to set rules even if they might lead to disciplinary action) the most interesting and the most fundamental to how freedom of speech will work in the future.

Unless the parties are able to settle or Sussex doesn’t get permission to bring the judicial review, the Administrative Court is likely to issue more definitive guidance on both the role and powers of the OfS and how the hardest freedom of speech issues are to be managed on campus.”

Alice Kendle – What impact does this have on universities’ approach to workplace issues?

“A key question for employment lawyers and HR professionals is how the measures universities have implemented to prevent bullying, harassment and discrimination of staff (and students) interact with the regulator’s expectations around freedom of speech.

Protected beliefs have continued to feature prominently in recent employment cases, many of which have centred on balancing "gender critical beliefs" with the rights of individuals in the LGBTQ+ community. In a situation where no protected characteristic trumps any other, employers have to balance an employee’s right to express and manifest their protected beliefs (including gender critical beliefs) with the protection of the rights of others (including individuals with opposing protected beliefs or another protected characteristic, such as gender reassignment). In HEIs, there is additional legal protection related to academic freedom and freedom of speech on campus. Establishing the appropriate legal balance is complex, particularly in high-pressured situations such as the one the University of Sussex found itself in. The University of Sussex is only one institution in a series – from within and outside the higher education sector – that the courts have found got it wrong. In the latest case on this issue, the Court of Appeal in Higgs v Farmor’s School has ruled that the Claimant’s dismissal for expressing gender critical beliefs amounted to unlawful discrimination. We have written a separate blog on that case drawing out lessons for employers (see our blog here).

Speaking purely from an employment perspective, this case report does not change the law. Universities should ensure that their employment policies are consistent with the latest case law in Higgs. Taking into account the case report, I would, though, recommend that universities pay particular attention to the tightness of the language and definitions used. For example, the OfS found that “the terms ‘transphobic abuse, harassment or bullying’ and ‘abusive, bullying or harassing material’ are still capable of restricting lawful speech because the definition used … was not limited to existing prohibitions in law and was therefore sufficiently broad to restrict lawful speech” (my emphasis). This issue could have been mitigated if the definition of harassment and discrimination was pinned to existing legal definitions, in particular in the Equality Act 2010. This is the approach the OfS has adopted in the upcoming condition of registration on harassment and sexual misconduct, which adopts standardised definitions (see our blog here). That said, the OfS’s analysis of what freedom of speech “within the law” means is being challenged by Sussex – for example, making the point that universities are permitted to prevent academics from bullying students notwithstanding that such conduct may not be discriminatory or otherwise criminal or unlawful. I therefore echo Jeremy’s comments that kneejerk changes to policies should be avoided, particularly changes which might have the unintended and undesirable consequence of watering down universities’ commitment to EDI.”

Laetitia Ransley – What lessons are there from a governance perspective?

“One of the striking aspects of the regulatory case report is the proportion of the overall fine which is attributed to management and governance – of the total penalty, nearly 40% is allocated to breach of condition E2.

The case report concludes that the University did not operate in accordance with the delegation arrangements set out in its governing documents. In particular, the internal groups which approved the Freedom of Speech Code of Practice, External Speakers’ Procedure and versions of the Trans and Non-Binary Equality Policy Statement (only the last of which was cited in the report) did so without having delegated authority to approve the documents. The report notes that this gave rise to a risk of “decision-making of a degraded quality” and that decisions “may not have been made in the best interests of students and staff”. The report concerns itself with the comparatively narrow question of delegated authority and does not elaborate on the composition, qualifications or decision-making processes of the relevant groups or whether, in its view, the fact that approval of the Policy Statement was delegated contributed to the failings which the report identifies. Clearly there is a question here as to whether the OfS is best placed to comment on these matters and whether they fall within its regulatory remit.

Universities are large, complex organisations and delegation is an effective, if not essential, means of ensuring that decisions are made by individuals and groups with the most experience and expertise in the relevant field. It is right that governing bodies consider carefully what matters it is appropriate to delegate to others (whether on an executive or advisory basis) and what should properly be reserved. Ultimately, governing bodies remain responsible for the actions of their delegates, so ensuring that schemes of delegation and terms of reference (including the remit of the relevant body and the scope of any delegated authority), as well as corresponding reporting lines, are clear and well-understood is a key aspect of governance.

The report does not appear to challenge the decision to delegate itself, and it would be unfortunate if an unintended consequence was to make governing bodies more reluctant to delegate. Rather, the OfS took issue with the fact that the university had not identified the delegates as “appropriate decision-makers for the relevant decision”. The OfS’s overall findings notwithstanding, this might be a timely reminder to review internal delegations with a view to ensuring that they are both appropriate in themselves and that the rationale for them is appropriately documented.”

We will be watching further developments closely. In the meantime, please do get in touch if you would like to discuss any of the matters raised in this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.