2026: a new ERA for free speech and academic freedom protection

Question (1)

It has been consistently emphasised that political (and academic) free speech under Article 10 of the European Convention on Human Rights (ECHR) is vital to democratic society.

Under Article 10, political (and academic) expression enjoys privileged status with limited restrictions. Article 14 prohibits discrimination based on “political or other opinion,” equating it to characteristics like race and religion, which are protected under the Equality Act 2010. However, Article 14 is not standalone and requires linkage to other rights.

A pivotal case in this space is Redfearn v United Kingdom (2013), where the European Court of Human Rights (ECtHR) ruled that the UK’s (then) one-year qualifying period for unfair dismissal claims under the Employment Rights Act 1996 (ERA 1996) violated Article 11 (freedom of assembly and association). Redfearn, a bus driver dismissed for his British National Party affiliation, lacked recourse due to insufficient service. The ECtHR criticised the UK’s failure to treat political affiliation equivalently to protected characteristics like race or religion, which have no qualifying period under EqA 2010. The UK responded by amending the ERA 1996 section 108(4) to waive the qualifying period for dismissals related to political opinions or affiliations.

I have critiqued this solution as inadequate. Unfair dismissal under ERA 1996 applies only to employees (not workers or applicants), is limited to employment contexts, and caps compensation (see below!), and excludes non-financial losses for injury to feelings. In contrast, EqA 2010 offers broader scope (covering goods, services, education), applies to workers, and allows uncapped awards, potentially in the millions. This disparity undermines ECHR equivalence, especially for non-employees. I posited that if Redfearn had been a worker, the ECtHR would likely mandate a new protected characteristic to comply fully with the Convention.

I have also examined how political beliefs sometimes gain protection under EqA 2010’s “religion or belief” category via the Grainger v Nicholson (2009) test for philosophical beliefs. This is a direct vector for Article 9 rights in English law. Article 10 has no equivalent.

While it is very common for free speech cases to be pleaded as Article 9 belief cases, there is a catch. To qualify for protection, the five-limb test Grainger test requires the belief to be genuinely held, not merely an opinion, weighty/substantial, cogent/serious, and worthy of respect in a democratic society. Burton J noted that political philosophies like socialism or capitalism could qualify, but opinions often fail limb 2.

Case analyses around philosophical beliefs reveal inconsistencies. In Olivier v Department of Work and Pensions (2013), democratic socialism (tied to Labour Party values) was protected due to the claimant’s deep commitment (30 years as a member and councillor). Conversely, in Sunderland v The Hut.Com Ltd (2022), conservatism failed for lacking genuine belief evidence beyond party membership. Similarly, Scottish independence qualified in McEleny v Ministry of Defence (2017) due to extensive activism, while unionism in Gibb v Dumfries and Galloway Council (2022) did not, owing to insufficient manifestation. I (and others) have argued that the Grainger test favours dogmatic partisanship, creates unpredictability, and disadvantages open-minded individuals.

Overall, I have asserted that there is a compelling legal case for reform to achieve consistency with ECHR jurisprudence, Redfearn’s principles, and existing protections. Adding the characteristic would expand safeguards, remove uncertainties in Grainger applications, and promote moderation in political discourse. It could have been a pseudo-vector for Article 10 claims and evened out the practical disparities between the level of protection for Article 9 and Article 10 rights.

Question (2)

The above argumentation has been rendered academic (both literally and figuratively: my paper is available for those interested) by changes being made by ERA 2025 from 2027. But what did we get?

The lowering of the qualifying period to six months for unfair dismissal is a partial answer. Before deciding if a dismissal was unfair, a tribunal must ensure that it is consistent with Article 10 free speech principles. Without a separate Article 10 enforcement vector in the tribunal, this isn’t bad - the tribunal is a public authority and the Convention therefore has indirect horizontal application, but only when the tribunal has jurisdiction to hear a claim, i.e. at six months. For political opinions or affiliations, this is a Day 1 right post-Redfearn. For general free speech cases, this is a material improvement.

Here’s the kicker. The removal of the cap on compensation for unfair dismissal brings functional equivalence of Article 9 and Article 10 rights a significant step closer. The truth is that Article 10-infused claims are complicated and expensive to run. The dismissals are typically highly stigmatising and losses harder to mitigate. The cap on compensation was, in my experience, a significant practical bar on the effective realisation of Article 10 rights because of these practical considerations. The removal of the compensation cap brings significant amelioration for these concerns and the cost-benefit analysis of running such claims through to a final hearing at the tribunal.

Question (3)

The issue of stigmatisation is, in my experience, particularly acute in dismissals involving academic freedom. Campuses can sometimes feel like the Omaha beach of the wider cultural war, exhibiting particularly high levels of political and moral polarisation compared to other workplaces (of course, conceiving of them as just workplaces could lead one into serious error, given their vital democratic and epistemic functions). Getting another job in academia after a high profile dismissal involving an exercise of academic freedom is particularly hard.

As such, the removal of the compensation cap could have a particularly noticeable effect in academic freedom disputes. The lowering of the threshold of continuous service is also important: tribunal jurisdiction engaging far earlier with Convention arguments around academic free expression under Article 10 will have a powerful effect, I predict.

In that respect, there are some important cases coming in 2026 in which my firm is acting. The concept of academic free expression is one which I have developed in my academic work, drawing together threads from the Convention jurisprudence. It has not yet been directly explored in the English courts. In a forthcoming case, this is likely to change and the court will be invited to affirm the extremely robust nature of the Article 10 protection for academic free expression. I think that could have the potential to be a seismic moment on campuses.

In another case, we will ask the appeal tribunal to integrate two distinct legal regimes more fully: namely ERA 1996 and the Higher Education and Research Act 2017 (as amended by the Higher Education (Freedom of Speech) Act 2023) (HERA). In essence, we say that a dismissal cannot be within the range of reasonable responses pursuant to ERA 1996 if it is a violation of the duty to take reasonably practicable steps to secure free speech and academic freedom. The OfS guidance on free speech makes it clear that this is a very high bar. Again, a potentially seismic moment for free speech and academic freedom.

I often reflect with clients how useful it would be to have the complaints scheme of the OfS in force. It will be cheaper and more straightforward than litigation. For many cases, a recommendation from the OfS will do the job. But for dismissal, the OfS recommendations are not legally binding or directly enforceable. A tribunal can order re-employment and, now, very significant compensation. When dismissals are concerned, a case which integrates ERA and HERA (with the OfS guidance feeding into the assessment of these legal questions) will be of material importance.

2026: a new ERA for free speech and academic freedom protection!