The OfS free speech complaints scheme is now live: what providers need to know

At a glance:

• Registered HE providers and their 'constituent institutions', including any constituent college, school, hall or other institution of the provider have a duty to secure freedom of speech within the law for stated categories of individuals. To facilitate this, providers must have a code of practice to address the legislative requirements, including steps taken to ensure compliance with the code of practice by their students' unions. Providers should consider a review and refresh as needed.

• Since 1 September 2026 the Scheme is in place. Providers must advertise the Scheme as soon as reasonably practicable and no later than 1 January 2027, and then do so annually. The distinction between the routes for eligible complainants and students should be made clear.

• Freedom of Speech complaints will be received by the Accountable officer. Consider how your internal processes are set-up to respond and which colleagues might need to be consulted. Review how confidentiality and legal privilege might need to be managed in some cases. The OfS will set a deadline for responses - normally a minimum of 14 days.

• If a complaint is found to be justified or partially justified, providers may have actions required of them. The OfS will publish outcomes and providers may also wish to consider any reputational implications of complaints being upheld.
  
  

Who can make a complaint?

The Scheme is open to:

• Persons who are, or were, members or members of staff of a provider.

• Persons who have applied to become academic staff of a provider.

• Persons who were, or were at any time invited to be, visiting speakers at a provider.

Students are not eligible. They should continue to use the Office of the Independent Adjudicator (OIA) route for free speech complaints - providers should communicate this distinction clearly.

What complaints will the OfS review?

For the OfS to accept and progress a complaint, it must:

• Be made by an eligible person.

• Allege that the complainant suffered adverse consequences because a provider breached its free speech duty under HEFSA (through action or inaction). Those consequences need not be financial and may include reputational harm, exclusion from events or disciplinary action.

• Usually be submitted within 12 months of the relevant action or inaction, after the provider’s internal disciplinary, complaints, grievance or appeals processes have been exhausted; the OfS may accept it sooner if 90 days have elapsed since the internal process began.

• Be in writing, made using the OfS complaint form and submitted by a named complainant; anonymous complaints are usually not accepted.

Providers should note that if the OfS decides that it is not an eligible complaint, the provider will not be told about it by the OfS.

When will a complaint fall outside the scheme?

There are several circumstances in which the OfS will not deal with a complaint.

• The Scheme is not retrospective: action or inaction before 1 September 2026 falls outside its scope, although the OfS may review a post-1 September decision relating to earlier events, such as an October 2026 disciplinary decision about conduct pre-dating 1 September.

• The respondent provider must have been a registered HE provider or constituent institution when the relevant action or inaction occurred.

• The OfS may dismiss a complaint it considers frivolous or vexatious, including repeat complaints raising the same issues without new information, complaints whose substance is continually changed, aggressive or unreasonable conduct, failure to identify issues clearly, non-compliance with information requirements, or complaints about trivial matters.

• Where a complaint includes matters that are not free speech claims, the OfS will review them only to the extent that they are relevant to the free speech claim; a wider grievance about working conditions, for example, will be examined only through that lens.

• When it appears to the OfS that proceedings relating to the same subject matter are being or have been dealt with by a court or tribunal, the OfS will not review the complaint. Panels internal to the provider or Professional Statutory or Regulatory Bodies are not regarded as a court or tribunal here.
  
  

Other points to note

The OfS applies the civil (balance of probabilities) standard of proof: a complaint will be justified where it is more likely than not that a breach occurred and the complainant suffered adverse consequences that were more than minor or trivial. It may be partly justified where a breach is established but there were no adverse consequences, or only minor or trivial ones.

Where the OfS considers that a complaint concerns academic judgement, it may seek expert academic judgement to inform its review, as well as other expert advice where appropriate. The rules do not currently clarify how, or from whom, the OfS will obtain that expertise. The OfS has indicated verbally that it does not consider that this will be done routinely.

Providers are required to take positive action to advertise the Scheme. Providers should, as soon as reasonably practicable after 1 September 2026 and no later than 1 January 2027, include prominent information about the Scheme in staff induction materials; the free speech code of practice and any process or procedure for managing speaking events; disciplinary, complaints, appeals, grievance and similar internal review processes; and, for academic staff applicants, application materials. Providers should also bring the Scheme to the attention of non-student members and staff at least annually.

Governing bodies of registered providers must maintain a freedom of speech code of practice setting out their values, procedures for organising meetings and events, conduct requirements and decision-making criteria. In light of the new scheme, universities should review and update their code and related policies to reflect the Scheme rules and ensure that the code is published, accessible and brought to attention at least annually.

Something to think about: existing court or tribunal proceedings

The OfS will not review a free speech complaint if proceedings concerning the same subject matter, in which the complainant is or was a party, are being or have been dealt with by a court or tribunal. Proceedings begin when the application or claim is accepted, including an application for permission to bring proceedings. For this purpose, a provider’s own internal disciplinary, complaints or appeals panel does not count. The OfS may nevertheless review a complaint if permission to bring proceedings was refused or the proceedings were formally stayed or adjourned. Once a claim has been accepted by a court or tribunal and is proceeding, however, the OfS route is likely to be unavailable for the same subject matter.

Practical advice: coordination between freedom of speech leads and HR

There is a direct intersection between the OfS Scheme and employment litigation, so the freedom of speech lead and HR should coordinate from the outset.

In practice:

• Check for parallel proceedings immediately. When an OfS complaint is received or contemplated, identify any existing or potential employment tribunal claim or court proceedings covering the same subject matter. From 1 October 2026, most employment tribunal claims with time limits starting on or after that date will have a limit of six months rather than three months.

• Do not assume internal processes stop the clock. A grievance or disciplinary process does not change the employment tribunal time limit, and a claimant may pursue an OfS complaint while preparing a tribunal claim.

• Keep positions consistent across forums. Once an employment tribunal claim has been accepted, there is likely to be a bar an OfS review of the same subject matter, so the freedom of speech lead, HR and legal teams should keep in close contact and coordinate the provider's response.

• Providers should consider how they manage the processes to avoid siloes. Confidentiality and legal privilege in this context will also require careful consideration.
  
  

How we can help

The Scheme has brought a new external route for free speech complaints from 1 September 2026. From April 2027, new conditions of registration may expose institutions to fines of up to £500,000 or 2% of income, whichever is higher and, in serious cases, deregistration.

Providers should now:

• Review freedom of speech policies, codes of practice and complaints procedures against the Scheme requirements;

• Brief freedom of speech leads, HR and legal counsel;

• Agree coordination protocols between the freedom of speech function, legal and HR; and

• Prepare for the new conditions of registration taking effect in April 2027.

Our Higher Education and Employment teams can assist with Scheme readiness, policy reviews and preparing for or responding to Freedom of Speech complaints under the new Scheme. For further information, please contact Clare Smith, Kris Robbetts and Katie Hurst.