Background
Russell Cherrington, a Senior Lecturer in Media and Film at the University of Derby, was summarily dismissed for gross misconduct after students complained about his language in the classroom. An internal investigation and disciplinary hearing found that he had used inappropriate and unprofessional language, including comments deemed misogynistic, transphobic, and ableist. Specific findings included that he referred to female students as “females,” stated a student actress was not “attractive enough” for a role, called a transitioning student a “troublesome trans kid,” and remarked that universities were becoming “a care home for people with disabilities.”
The university concluded that this behaviour breached its equality and diversity policies, created an unsafe learning environment, and showed a lack of insight that made future incidents likely. Cherrington, who represented himself at the initial Employment Tribunal (ET), challenged his dismissal primarily on procedural grounds, arguing the investigation was biased and unfair. Although his witness statement made passing references to “freedom of speech,” he did not explicitly raise an argument under Article 10 of the European Convention on Human Rights (ECHR), which protects freedom of expression. The ET found his dismissal was fair, and Cherrington appealed to the Employment Appeal Tribunal (EAT).
The Court’s Holding
The Employment Appeal Tribunal dismissed the appeal, upholding the original tribunal’s finding that the dismissal was fair. The core of the appeal was Cherrington’s argument that the ET had a legal duty to consider his Article 10 rights to academic freedom of expression, even though he had not explicitly raised the point. The EAT rejected this, holding that a tribunal is not required to consider a human rights argument of its own accord unless the issue “shouts out” from the facts and the way the case is presented. Here, Cherrington’s case focused overwhelmingly on procedural unfairness, not freedom of expression, so the Art. 10 issue was not obvious or central to his claim.
The EAT also rejected Cherrington’s alternative request to be allowed to introduce the Art. 10 argument for the first time on appeal, finding no exceptional circumstances to justify it. It noted that parties, even if self-representing, are responsible for raising the legal arguments on which they intend to rely at the initial hearing. A final ground of appeal, alleging the ET failed to consider the Education (No 2) Act 1986 regarding free speech in universities, also failed. The EAT observed that Cherrington himself had mistakenly directed the ET to a newer, but similar, statute, which the ET did consider, meaning no legal error had occurred.
Key Takeaways
- An Employment Tribunal is not obligated to proactively identify and apply a human rights argument (such as under Article 10 ECHR) if the claimant has not raised it, unless the issue is so obvious from the facts that it “shouts out.”
- A party generally cannot introduce a new legal argument on appeal that was not raised at the original tribunal hearing, absent exceptional circumstances.
- While academic freedom is an important principle, it does not provide blanket protection for speech that an employer reasonably deems to be discriminatory, unprofessional, and in breach of its conduct policies.
Why It Matters
This judgment serves as a critical reminder of the procedural responsibilities of litigants in employment cases. It clarifies that tribunals are not expected to act as legal counsel for the parties by constructing and arguing points of law that have not been put forward, even when fundamental rights are potentially engaged. The decision reinforces the principle that parties must clearly articulate their legal case at the first instance.
Furthermore, the case illustrates the boundaries of academic freedom in the context of employment law. It shows that universities, as employers, can enforce professional conduct standards and take action against language that creates a hostile or discriminatory environment for students, without necessarily falling afoul of legal protections for free speech.