Constructive Dismissal from The Open University

Last week I announced, with the heaviest of hearts, that I resigned my post, with immediate effect as Chair in Criminology at The Open University. On December 2nd, 2021, I ended my 25 year long relationship with that institution. I also announced my pleasure at taking up a new post as Professor of Criminology at Reading University from January 1, 2022.  

For those unaware of my circumstances, as a gender critical scholar standing up for the rights of women, I lodged a claim in an employment tribunal against The Open University for its failure to protect me from bullying and harassment on the grounds of my gender critical beliefs and I have an open appeal for donations to help fund what will be a very expensive legal process.

When I announced my resignation, and my new appointment it had been a hard week of highs and lows, and I was exhausted, so I left it at that. Today, I am going to explain why I left so abruptly and why I am adding constructive dismissal to my claim against The Open University.

The failure to take seriously my grievance

On 24th June 2021 I submitted a grievance to The Open University detailing a bullying and harassment campaign by my close working colleagues and more than 360 university staff . My harassers labelled me a transphobe because of my gender critical beliefs and for standing up for the rights of women and girls, and demanded that my employer discriminate against me. The label ‘transphobe’ is a vile and hateful one which I reject wholeheartedly.

The bullying and harassment started nearly two years ago but came to a head in a very public campaign against me when colleagues and I launched The Open University Gender Critical Research Network, a group of academics who are interested in researching how sex matters in contemporary life. It is tremendously important that such a research group exists because it is only through research that we can establish how, where, why and presumably if biological sex matters so that we can address some of the really challenging issues we face for example: should natal males who identify as transgender women be placed in female prisons (this is work that I currently do), or how do we work through the complexities of fairness in allowing transwomen to compete in female sporting competitions (this is work done by my colleague who co-founded the network with me – Dr Jon Pike). The best government policies are evidence-based and draw on such research expertise – the research matters

The concerted harassment campaign took a serious toll on my mental health, my reputation, and my ability to work since I was being shunned and vilified by my colleagues. Because of this I asked the university time and again to expedite the grievance - I needed an outcome if I was to have any chance of returning to my full duties. Despite my pleading I was told on the 12 November 2021, nearly 6 months after submitting my grievance, that I might get an outcome before Christmas, but then again I might not. Finding out that there was no scheduled date for the outcome of my grievance felt like the ultimate betrayal by the university I loved. Once my initial shock and grief subsided, I knew that my trust and faith in The Open University was misplaced. Asking me to wait for more than six months to resolve a very serious grievance is an utterly unreasonable demand and in making it The Open University pretty much made impossible for me to continue to work. They had, in effect, constructively dismissed me. Since I resigned, I was informed that The Open University has suspended the grievance investigation and will not provide an outcome until after the Tribunal, despite best practice guides. But there is more.

My Employer’s Public Statements

Universities have legal obligations to ensure academic freedom. This means that they must foster and create an atmosphere and culture which allows academics to do their work. They must also follow employment law. Academic freedom and freedom of speech does not allow anyone working in a university to say whatever they want. It is limited by laws on unlawful speech. Harassment is unlawful speech. To allow harassment of an academic on the basis of a protected characteristic – such as belief that is worthy of respect in a democratic society, like the idea that sex is immutable  – is in breach of employment law. Calling an academic a transphobe simply for doing work that starts from the basis that biological sex is not changeable and that it matters is, in my view, harassment. My harassers did this across several public letters and statements placed on Google docs and my university servers.

However, The Open University as an employer also issued several statements of its own - placed on internal SharePoint pages, shared externally on social media by my harassers, and more recently on an external facing news page - that make its position clear. In the first statement the OU distances itself from the OUGCRN stating it is a “very sensitive topic” and offers support for trans and non-binary community, ending with a comment that the OUGCRN is not institutionally endorsed.

In the second statement the vice chancellor states that the OUGCRN has caused “hurt and distress”. To suggest that the academic work I do causes distress and harm whilst failing to acknowledge the distress and reputation damage done to me by more than 360 OU employees highlights the shockingly unequal treatment afforded me by my employer.

A third statement was published on the OU news page on 10th November. It stated that “The Vice-Chancellor's Executive found that the formation of the GCRN was compatible with academic freedom, while also acknowledging that some staff found the content of the group's work to be challenging or concerning”. The implication is clear. It is the GCRN (and by definition the network’s members including me) that are the problem. The full statement makes it clear that the university could not legally stop us, it had to allow us to continue but that it would make extra support available for others’ distress. It felt like a gut punch.

At no point has The Open University acknowledged in these statements its legal obligations under the Equality Act 2010 to protect gender critical academics from harassment. At no point has it acknowledged the hurt or distress caused to me. These absences are not a mistake. They are the result of an active choice. Clearly my distress, and that of many others (read the Crowd Justice comments to see just how many there are) is not worth mentioning. When my employer broadcast its shockingly unequal treatment of my distress on an external news page, my trust in my employer was shattered.  

Bringing my case to an employment tribunal will test my courage and place a huge financial burden on me and my partner. So far, through the exceptional generosity of over 3000 people, there is now a fighting fund of just over £90,000. This sounds like a massive amount, but the OU has deep pockets and £90,000 will be swallowed up very quickly if I am to get the best representation. But I know that this case will help to establish a line in the sand and make it clear that baseless accusations of transphobia simply for standing up for the rights of women is harassment especially when made in an academic context. For that reason, I am bringing together one of the most exciting legal teams to fight this case which means a reluctant change in the Crowd Justice target to £150,000. This is a HUGE ask. So many have already given so much. And it is Christmas. If you cannot give now, please make a note to give in January or February when finances are a little easier. I have a long way to go and a hard legal battle to fight. Any and all help and support you can offer will go to ease my burden.

The link to my Crowd Justice funder is: https://www.bitly.com/ProfPhoenix