Cherrington v University of Derby: EAT rejects bid to raise human rights argument for first time on appeal

The Employment Appeal Tribunal has dismissed an appeal by a former university lecturer who argued that the tribunal which upheld his dismissal should have considered his right to freedom of expression under Article 10 of the European Convention on Human Rights, even though he never raised the point himself.

In Cherrington v University of Derby [2026] EAT 107, Mr Justice Cavanagh rejected the contention that an employment tribunal is obliged to consider Convention rights of its own motion whenever a dismissal concerns something an employee said, describing such a duty as one that would impose an unworkable burden on tribunals dealing with unfair dismissal claims "day in, day out".

Russell Cherrington, a senior lecturer in media and film, was summarily dismissed in May 2024 following complaints from students about language he had used in teaching sessions, including references to a transitioning student as a "troublesome trans kid" and a remark that an actress in a student's project was "not attractive enough for the role". A disciplinary panel found four of the allegations amounted to gross misconduct, citing misogynistic, transphobic and ableist language, and two further matters amounted to misconduct. An appeal panel upheld the dismissal, and an employment tribunal in Nottingham subsequently found the dismissal fair, rejecting the various procedural complaints Cherrington had raised as a litigant in person.

On appeal, representation by Professor Alan Bogg for Cherrington accepted that Article 10 had not been mentioned in the claim form, in evidence or in submissions before the tribunal, but argued that the issue nonetheless should have been obvious given the academic context and Cherrington's references to "freedom of speech" during the hearing. Mr Justice Cavanagh disagreed, finding that the substance of the allegations against Cherrington, largely concerning discriminatory and unprofessional remarks towards students rather than the expression of controversial academic opinions, did not "shout out" the need for an Article 10 analysis, applying the test set out by the Court of Appeal in Moustache v Chelsea and Westminster NHS Foundation Trust.

The judgement drew a distinction between cases in which Convention rights are expressly relied upon, where they may genuinely affect the outcome, and the far larger category of speech-related dismissals in which, as established in X v Y, a fairly conducted dismissal process is unlikely to fall foul of Article 10 in any event. Extending an automatic duty to consider Article 10 to every case involving an employee's words would, the judgement found, have no principled stopping point, since equivalent obligations would then arise under other Convention articles in cases touching on private life, religion or association.

The tribunal also declined to allow Cherrington to raise the Article 10 argument for the first time on appeal, applying the established principle that new points requiring further factual findings, rather than pure questions of law, will rarely be permitted at the appellate stage. The university would likely have led different evidence, the judgement noted, had it understood Article 10 to be in issue.

A separate ground concerning section 43(1) of the Education (No 2) Act 1986, which imposed a freedom of speech duty on universities at the time of the dismissal, also failed. The tribunal below had already considered the substance of Cherrington's freedom of speech argument, albeit by reference to later legislation not yet in force, and reached the same conclusion it would have reached under section 43(1), rendering any error immaterial to the outcome.

The appeal was dismissed in full.