By Jo Seery, Professional Support Lawyer
Background
Mr Cherrington was employed by the University of Derby as a Senior Lecturer in Media and Film. He was suspended after following complaints from students that he had used inappropriate and unprofessional language, including comments considered misogynistic, transphobic, ableist and homophobic. After an investigation and disciplinary hearing, the university considered that several comments were in breach of the University’s Equality, Diversity and Inclusion and How We Work Policies and amounted to gross misconduct for which he was dismissed in May 2024.
Mr Cherrington appealed on a number of grounds including that the decision to dismiss was harsh and in breach of the Higher Education (Freedom of Speech) Act 2023 which, in short, provides that the University is required to take reasonably practicable steps to ensure freedom of speech was secured within the law. When his appeal was rejected Mr Cherrington brought a claim for unfair dismissal, arguing primarily that the disciplinary process had been unfair. There was no reference to Article 10 of the European Convention on Human Rights on the right to freedom of expression either expressly or generally.
The Employment Tribunal rejected his unfair dismissal claim, and he appealed to the Employment Appeal Tribunal (EAT), arguing that the Tribunal should have interpreted his dismissal in accordance with Article 10 of the European Convention on Human Rights, which protects freedom of expression.
Outcome
The EAT dismissed the appeal. It held that the Employment Tribunal had not erred by failing to consider Article 10 of its own initiative where the argument had not been clearly pleaded or pursued during the original proceedings. In reaching this decision the EAT examined the key legal tests that apply when considering if Article 10 is engaged in a claim for unfair dismissal.
- Was it obvious (did it “shout out”) from the way the case was pleaded or advanced in argument?
- If not, should the tribunal “as a matter of course” consider if Article 10 is relevant?
- If not, was the failure to address Article 10 fundamentally unfair?
In relation to 1 the EAT held that consideration of Article 10 did not “shout out” from the way pleadings or the way his case was put. Mr Cherrington was not dismissed because he expressed unfashionable or unpopular views in his teaching but rather because he had used potentially discriminatory language towards students.
As for 2 the EAT considered this was a step too far, it would mean that in every case of unfair dismissal a tribunal would be under an obligation of its own motion to consider if any of the European Convention Rights was engaged. This was not the same as considering if the facts and circumstances gave rise to a consideration in which case 1. above would apply.
As to 3. The EAT considered there was no principle or rule of law that allowed for a point on convention rights to be taken for the first time on appeal. While a decision to allow convention rights to be heard for the first time on appeal was allowed in Wandsworth London Borough Council v Vining this was on a point of law only and no further factual evidence was required to make a determination. That was not the case here where further factual evidence would be required nor was it an exceptional case justifying departure from the normal rules. The appeal was therefore dismissed in its entirety.
Comments / Key takeaways
This decision makes clear that although freedom of expression and academic freedom may be relevant factors in some cases, unless they are expressly set out or argued, the tribunal will not necessarily be required to interpret the decision to dismiss in light of Article 10. This is especially so in cases where further evidence is needed to understand the employer’s aims when making the decision to dismiss and its impact on the employee.
Universities and other public bodies will still need to balance disciplinary concerns against freedom of expression obligations, particularly where disciplinary action is taken against employees for developing arguments connected to teaching, research or academic debate.
Cherrington v University of Derby
