Many universities will recall the rush to prepare for and introduce a new free speech complaints process in summer 2024. 

The task was made all the more challenging by guidance that left some key questions unanswered – reflecting the fact that balancing competing rights is complex and fact-specific – and the consequent need to update multiple connected existing procedures.  

The implementation of the Higher Education (Freedom of Speech) Act 2023 was, in the event, paused after a rapid review by the new Labour government, with the first wave of measures under the Act taking effect in August 2025. 

Of the remaining measures, this week it was announced that the Office for Students’ (OfS) complaints scheme, for staff and visiting speakers, is now due to take effect in September 2026.

Complaints scheme introduced following backdrop of legal cases

Free speech challenges have been brought and addressed in the intervening period, both via internal complaints and grievance procedures and litigation.

While a series of high-profile employment tribunal cases have to date brought little by way of general guidance on the balancing of free speech with other rights (because the focus of the cases has been on the claimant’s Equality Act rights), this is set to change when the University of Sussex judicial review judgment is published and potentially also the Miller v University of Bristol employment appeals tribunal decision.

While the government and regulator would wish to limit any ongoing delay to the introduction of the scheme, the timing of the announcement and consultation might prove to be premature if the regulations and guidance fail to take account of the Sussex  judgment and also to ensure consistency with the approach taken by the Office for the Independent Adjudicator (OIA) in relation to student complaints.

Regulator’s new powers in freedom of speech cases

The regulations will provide for OfS powers under the complaints scheme to levy fines of up to £500,000 or 2% of turnover from April 2027.

But until the Sussex decision is available, it will remain unclear how this sits with the £585,000 fine issued under existing conditions of registration. 

Considering there are already complaints routes available to students (via the OIA), to staff (internal grievances and tribunal claims) and under visiting speaker procedures, all alongside OfS guidance note RA24, a new rush to introduce a scheme could result in a missed opportunity to optimise its effectiveness and to pull together the disparate strands emerging as a result of different routes of judicial challenge. 

Universities must start preparing now

Given the maximum fines that could be imposed by the OfS under the new scheme, added to the compliance duties and potential financial exposure under the existing conditions of registration, it’s crucial that universities act promptly and plan for the regulations and introduction of the scheme.

This will include:  

1. Reviewing previous complaints scheme preparations in light of the guidance and caselaw issued since the summer of 2024.
2. Contributing to the consultation. 
3. Updating existing grievance, disciplinary and speaker processes, where there may be significant overlap. 

It is also in the interests of all in the higher education sector to work within a framework that priorities dispute resolution over adversarial alternatives. If you would like to discuss student complaints in relation to the new scheme, please reach out to our specialist team.