29/06/2026
Welcome to the summer edition of Higher Education Today.
In each edition we feature content from key members of our Higher Education team.
In this edition, our higher education employment team discuss the key actions that universities should be undertaking to comply with the Employment Rights Act.
We also comment on the recent heat network authorisation conditions. For those institutions with either a district heat network or a communal heat network, we look at how you can prepare and comply with the Authorisation Conditions required to register their heat networks with Ofgem by 26 January 2027.
Additionally, we consider University of Sussex v Office for Students and examine the background, judgement, and key takeaways for the sector.
Finally, we also explain how newcomer injunctions enable organisations to take swift legal action against “persons unknown” and how this can help to contain the impact of cyber breaches.
If you would like further information about the wider Higher Education team please see our Higher Education brochure. Or you can view our previous higher education webinars.
We hope you find the newsletter interesting and helpful.
Head of Higher Education
Zero-Hours Contracts and Third-Party Harassment: The Employment Rights Act 2025's Impact on Universities
The Employment Rights Act 2025 (Act) represents the most significant overhaul of employment law in a generation, introducing reforms across virtually every area of the employment relationship. For universities, two reforms in particular demand focused attention: a strengthened duty to prevent sexual harassment, including a new express obligation to prevent third-party harassment across all protected characteristics; and the introduction of guaranteed-hours rights for workers on zero-hours and low-hours contracts.
Preventing Sexual and Third-Party Harassment
From October 2026, the Act will require employers to take “all reasonable steps” to prevent sexual harassment, a materially higher threshold than the existing preventative duty. The enforcement framework carries real weight. The Equality and Human Rights Commission can investigate institutions that fall short, and where an Employment Tribunal upholds a harassment claim and finds the preventative duty was not met, it may impose a compensation uplift of up to 25%.
Alongside this, the Act re-introduces employer liability for harassment carried out by third parties. In a university, that means students, visitors, conference delegates and contractors. The third-party duty applies across all protected characteristics, including race, disability, religion or belief, age, and sexual orientation, not just sex.
Why This Matters in Universities
Staff interact with students and visitors across teaching, supervision, open days, residential settings, and digital platforms, often with limited management oversight. The student-staff dynamic means that harassment can flow in both directions, and the informal nature of academic life can make professional boundaries harder to maintain. These features make the higher education sector particularly exposed to third-party harassment risk.
The University College Union’s 2021 survey says that one in ten university and college staff surveyed have experienced direct workplace sexual violence in the previous five years. The report found that 12% of women and 5% of men were directly affected, but 52% did not report it to their employer. 70% of those affected experienced it as a pattern of behaviour rather than a one-off incident. Staff on non-permanent contracts were 1.3 times more likely to be victims.
How to Prepare for the Change
Risk assessment: Identify settings in which staff have regular contact with third parties, assess the nature and level of risk across all relevant protected characteristics, and document your findings.
Signage: display signage / posters / intranet banners showing that harassment of staff will not be tolerated.
Policy review: Ensure your harassment, dignity at work, and student conduct policies explicitly address third-party harassment, covering digital and remote channels.
Training: Deliver targeted training to student-facing staff, line managers, and senior leaders, each with content tailored to roles and responsibilities.
Reporting mechanisms: Ensure reporting channels are accessible, confidential, and clearly publicised, including anonymous reporting. Consider staff in non-office environments such as residential, portering, and catering roles.
Governance briefing: Brief your governing body and senior leadership team. The preventative duty creates institutional exposure.
Guaranteed Hours for Zero-Hours and Low-Hours Workers
From 2027, when a worker's average hours over a defined reference period exceed their contracted hours, the employer must offer a contract reflecting those hours. Workers may decline if they prefer flexibility, but the offer must be made, and repeated following the end of each reference period. Additional rights cover reasonable advance notice of shifts and compensation where shifts are cancelled at short notice.
Why This Matters in Universities
Hourly-paid lecturers, seminar leaders, research assistants, invigilators, and student support workers are routinely engaged on zero-hours or low-hours terms, sometimes for years, delivering regular hours across each academic term.
The Higher Education Statistics Agency recorded 3,440 academic staff on zero-hours contracts in 2024/25, a figure that excludes atypical contracts. Since academics on atypical contracts are widely understood to represent a large number of individuals on zero hours terms, commentators have previously noted that official figures are likely to understate the lived scale of casualisation within the sector.
A casual lecturer delivering consistent teaching hours across a 24-week academic year is, in practice, working a regular pattern. In this scenario, the reference period will capture that pattern and trigger the obligation to offer guaranteed hours, regardless of how the engagement has been described contractually. Institutions that have historically relied on flexible casual arrangements to manage fluctuating student numbers and timetabling demands will need to reconsider their workforce models.
On 2 June 2026, the Government launched its consultation on the detailed regulations implementing these obligations. Three core duties are proposed:
- Guaranteed hours: the Government's preferred initial reference period is 12 weeks;
- Shift notice: a duty to provide reasonable advance notice of shifts, with options under consultation ranging from one to four weeks; and
- Short-notice cancellation pay: a duty to compensate workers where shifts are cancelled, moved, or curtailed at short notice, with compensation rates under consultation ranging from 10% to 80% of earnings for the affected shift.
Critically, all three duties extend to agency workers, a point of particular relevance to institutions that engage invigilators, administrative staff, or technical support through staffing agencies.
How to Prepare for the Change
Workforce audit: Map all zero-hours or low-hours arrangements against contracted and actual working patterns to identify exposure before the obligations come into force.
Systems review: Confirm your HR and payroll systems can track individual hours level across the reference period, flag when a guaranteed-hours offer is due, and process cancellation compensation.
Cross-departmental planning: Involve academic departments, timetabling teams, and professional services leads in identifying which casual roles will trigger the obligation and where models of engagement may need to change.
Manager training: Those responsible for engaging and scheduling casual staff need to understand how the reference period operates, when a guaranteed-hours offer is required, and the financial consequences of short-notice cancellations.
Trade union engagement: Engage with recognised trade unions early. Unions will have a legitimate interest in how the institution interprets the reference period, designs the offer process, and plans changes to its casual workforce model.
Looking Ahead
The reforms outlined above are significant, but they are not insurmountable. Universities that take a structured, proactive approach will find themselves well positioned when the new obligations take effect.
If you have any questions or would like to enquire about training, please contact Ashley Norman, Kelly Simpson, or Siobhan Murley.
Alternatively, you can visit our Employment Rights Hub, a dedicated space offering tools, guidance, and updates as the reforms develop and the final detail is confirmed.
Heat Networks Authorisation – considerations for Higher Education institutions
What is happening?
In order to regularise, and then stimulate the growth of, the heat network sector, the government has moved to treat heat networks as a regulated utility, akin to electricity or gas. Therefore, as of the 27th of January 2026 relevant heat network “operators” and “suppliers” are regulated by Ofgem and must comply with the Authorisation Conditions.
Initially all heat networks that were operating as at the start of 2026 have been deemed to be automatically authorised by Ofgem to enable them to continue to operate. However, both Operators and Suppliers will need to comply with the Authorisation Conditions that apply to the services they are providing and are required to register their heat networks with Ofgem by 26 January 2027.
The key policy principle underpinning regulation in this area is consumer protection, which includes technical standards and performance and security of supply, and the purpose of the new regulatory regime is to ensure that those involved in delivering heating, hot water and, where relevant, cooling through heat networks can evidence compliance with these principles. Therefore, operators and suppliers should have these principles in the forefront of their minds as they prepare for registration.
Does this affect us?
A number of Higher Education institutions may be caught by the requirement to be authorised. If your institution has either a “district heat network” or a “communal heat network” it is probable that the Authorisation Conditions apply to some degree.
A District Heat Network supplies heating, cooling and/or hot water to two or more buildings and a Communal Heat Network supplies heating, cooling and/or hot water to a single building divided into separate premises.
It is therefore essential to consider whether you are regulated and to what extent. Entities can be one or both of operator and supplier. Broadly speaking, operators control the transfer of heat whereas suppliers supply heating, cooling or hot water. However, classification as a supplier is not limited to those holding heat supply agreements but includes any arrangement where there is a supply and this could include under leases.
What should we be doing now?
- As noted above, first confirm your status:
- Do you have a “relevant network” (i.e. a District Heat or Communal Network)?
- If so, are you an operator, supplier or both?
- Allocate internal resource and review your position – registration requires that you evidence compliance with the Authorisation Conditions and this includes collating legal, technical, governance and commercial input to agree a plan of action in order to meet the compliance requirements.
- Review your supply arrangements – there are specific obligations for these including about approaches to pricing, billing and complaints handling procedures, along with requisite policies for these.
- Consider what does and does not need to be documented – the Authorisation Conditions contain various regulatory requirements around documentation and evidence of policies and procedures. Where you have third party contracts it is important to consider the extent to which certain Authorisation Conditions need to be reflected in such contracts - for example, regulated entities are required to maintain a Business Continuity Plan so you need to think about whether the regulatory requirement to have this plan is sufficient or if, as a matter of good practice, a relevant contract should include the obligation to develop and maintain such a plan.
- Review costs and pricing – pricing must be fair and not disproportionate. There is no predefined IRR cap but charges need to meet reasonableness tests. Who is responsible for capital and operational expenditure, including the cost of upgrades to achieve technical standards, and what do your existing contracts say about this?
- Prepare / update a Material Asset Register – by 26 January 2027, you must have a register detailing the condition and function of all critical infrastructure and other assets required to ensure supply continuity.
In summary:
If you are affected, or think you might be, preparation is key. Take advice as to whether you are an operator or supplier. If you are one, or both it will be important to familiarise yourself with the Authorisation Conditions and your current (and future) arrangements.
Successful compliance will be centred on being able to evidence that you have considered the relevant principles and the regulatory tests such as fairness and reasonableness are subjective. Therefore, documenting your rationale for decision-making in a way that can be easily audited will reduce your risk of non-compliance.
Unfortunately, there is no “one size fits all” to the way the Authorisation Conditions apply though as further guidance becomes available from Ofgem and as the heat network sector increasingly engages with the registration process, market standard approaches to regulatory issues will begin to emerge.
Our team is here to help – please get in touch and we will be more than happy to discuss your specific situation.
If you would like further guidance on the distinction between heat network operators and suppliers and the implications of each, please contact Carrie Davies, Helen Stead, or Sophie Stawte-Lewis for a copy of our heat network authorisation brochure. This free guide summarises the key clarifications and the responsibility that apply to each.
You can also find free resources including articles and webinars on our Points of Connection hub – our knowledge centre for anyone involved in district energy and heat networks.
University of Sussex v Office for Students – High Court provides important guidance on freedom of speech regulation
At the end of April 2026, the High Court handed down its judgement in the judicial review brought by the University of Sussex against the Office for Students (OfS). The claim challenged the OfS's decision to impose a £585,000 monetary penalty for breaches of Conditions E1 and E2 of the University's ongoing registration conditions.
The University succeeded on a number of significant grounds of challenge, although the Court also upheld aspects of the OfS's approach. The judgement provides important guidance on the interpretation of the OfS's freedom of speech regulatory framework and the exercise of its enforcement powers. Although the OfS has confirmed that it will not appeal the decision, the judgement is likely to influence future regulatory investigations and providers' compliance with the enhanced freedom of speech duties introduced by the Higher Education (Freedom of Speech) Act 2023.
Background
The OfS was established by the Higher Education and Research Act 2017 (HERA) and has the power to impose ongoing conditions of registration with which registered higher education providers must comply. These include:
- Condition E1 – a provider's governing documents must uphold the Public Interest Governance Principles (PIGPs) applicable to the provider; and
- Condition E2 – a provider must have in place adequate and effective management and governance arrangements to operate in accordance with its governing documents.
The PIGPs include principles relating to freedom of speech and academic freedom.
In 2018, the University introduced a Trans and Non-Binary Equality Policy Statement (the Policy Statement), which was subsequently revised on a number of occasions. In October 2021, the OfS opened an investigation into the University's compliance with Conditions E1, E2 and E3 following events surrounding Professor Kathleen Stock and the University's handling of complaints and student protests concerning her gender-critical views.
The OfS issued its Final Decision on 27 March 2025. It concluded that the 2018, 2022 and 2023 versions of the Policy Statement breached Condition E1 by failing to uphold the relevant PIGPs. It also found that the University had failed to follow the appropriate governance procedures when approving its Freedom of Speech Code of Practice, External Speakers Procedure and Policy Statements, resulting in a breach of Condition E2(i).
The Court's decision
While the Court upheld some aspects of the OfS's approach, it found that a number of elements of the Final Decision were unlawful.
Most significantly, the Court held that the Policy Statement was not a "governing document" for the purposes of HERA. As a result, it could not itself give rise to a breach of Condition E1, providing important clarification on the scope of that registration condition.
The Court also considered the meaning of "freedom of speech within the law". It endorsed the three-stage approach adopted by the OfS in Regulatory Advice 24, including the need to assess whether any restriction on speech is justified and proportionate. However, it concluded that the framework had not been correctly applied in this case. In particular, the Court held that the OfS had focused on the fact that the Policy Statement could restrict lawful speech without fully considering whether any such restriction could nevertheless be justified. The Court also found that the Policy Statement should have been considered alongside the University's wider governance framework, including its Freedom of Speech Code of Practice, rather than in isolation.
The judgement also provides useful clarification on the meaning of academic freedom. The Court held that the relevant Public Interest Governance Principle reflects the statutory protection afforded to academics against being placed in jeopardy of losing their jobs or privileges because of lawful teaching, research or expression. On the facts of this case, the Court concluded that the OfS had interpreted that principle too broadly by relying on concepts such as a "chilling effect", and the causation of stress and anxiety.
The Court further held that the OfS should have considered whether the University's subsequent revisions to its policies had remedied the alleged breaches before issuing its Final Decision and imposing a substantial financial penalty. In the Court's view, whether regulatory intervention remained necessary was a relevant consideration under both HERA and the OfS's own Regulatory Framework.
The Court also upheld a number of aspects of the OfS's decision-making. It recognised the OfS's expertise as the specialist statutory regulator responsible for protecting freedom of speech and academic freedom and accepted that its assessment of harm attracts an appropriate degree of judicial respect. The Court concluded that it was not irrational for the OfS to find that the Policy Statement, viewed in isolation, was capable of causing significant and severe harm to freedom of speech. It also rejected the University's procedural fairness challenge relating to the OfS's decision not to disclose Professor Stock's second witness statement before issuing the Final Decision.
Finally, although the Court rejected the University's argument that Dr Arif Ahmed's personal involvement gave rise to apparent bias, it concluded that there was a real possibility that the OfS had approached the investigation with a closed mind.
Key takeaways
The judgement provides valuable clarification of the legal framework governing freedom of speech and academic freedom and will be an important reference point for both providers and the OfS.
In particular:
- Regulatory Advice 24 remains the correct framework for assessing freedom of speech "within the law", including the requirement to undertake a proportionality assessment before concluding that lawful speech has been unlawfully restricted.
- Universities should consider their governance framework as a whole. The judgement emphasises the importance of ensuring that policies relating to freedom of speech operate consistently with governing documents and codes of practice.
- Academic freedom should be understood in its statutory context. The judgement confirms that the relevant Public Interest Governance Principle is concerned with protecting academics from jeopardy to their employment or privileges because of lawful teaching, research or expression.
We can expect the OfS to consider the implications of the judgement for its regulatory approach and guidance as the sector continues to prepare for the enhanced freedom of speech duties introduced by the Higher Education (Freedom of Speech) Act 2023.
Newcomer Injunctions: A Strategic Tool in Managing Cyber Attacks
Universities and educations providers are prime targets for cyber-attacks, with large volumes of sensitive student, staff and research data at stake. With the Cyber Security Breaches Survey published by the Department of Science, Innovation & Technology in 2025 revealing that approximately 91% of higher education instructions have experienced a cyber security breach in the previous 12 months, acting quickly to mitigate risk is critical.
In our article, Judith Hopper and Stephanie Sandford-Smith explain how newcomer injunctions enable organisations to take swift legal action against “persons unknown”, restrict the spread of unlawfully published material and contain the impact of the breach – including a recent case involving the University & College Union.
Say hello to us
Our Higher Education team is attending and speaking at a number of in-person and online events over the next few months, please follow the links for details. If you are also at these events, please come and say hello to us.
- Independent Higher Education – Fraud awareness and detection – 22 July 2026 (online)
- Independent Higher Education - Student complaints and appeals – 21 September 2026 (online)
- Universities Safety and Health Association (USHA) – 7-9 October 2026 (Aston University)
- Independent Higher Education Annual Conference – 18 November 2026 (London)
Stay in the know — follow our LinkedIn page for legal insights that matter, or sign up for our Higher Education quarterly newsletter and bi-annual webinar series.
Previous Editions
- 27/04/26 Higher Education Today – Spring 2026
- 22/01/26 Higher Education Today – January 2026
- 16/10/25 Higher Education Today – Autumn 2025
- 13/05/25 Higher Education Today – May 2025
- 06/02/25 Higher Education Today – February 2025
- 23/10/24 Higher Education Today – October 2024
- 30/04/24 Higher Education Today – April 2024
