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Abstract This article evaluates the state of protection for academic freedom and academic freedom of expression in English law, specifically the effectiveness of protected philosophical belief (PPB) as a vector for protecting them. We argue that the category of PPB (circumscribed by the test in Grainger v Nicholson) is inherently inappropriate as a means of protecting values that are of signal importance in the academic employment context. Furthermore, this framing poses a risk that the concepts of academic freedom and academic freedom of expression may be overlooked or misconstrued in the analysis when applying legal tests (eg of harassment) or in carrying out balancing exercises with the rights of others. We offer critiques of the analytical approach in two recent employment tribunal decisions—Phoenix v The Open University and Miller v University of Bristol—identifying how these problems arise in the reasoning of both tribunals in relation to academic freedom and academic freedom fo expression. Examining how the Higher Education (Freedom of Speech) Act 2023 fails to remedy these issues, we set out the approach that tribunals and courts should in fact take in cases concerning AF and AFoE with reference to the jurisprudence of the European Court of Human Rights and international instruments.
Waltham‐Smith et al. (Fri,) studied this question.
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