Cherrington v University of Derby [2026] EAT 107

In brief

The Employment Appeal Tribunal dismissed an appeal by a senior lecturer dismissed for gross misconduct after a university found he had used inappropriate and unprofessional language to students [2], [154]. The appellant argued that the tribunal should have read the unfair dismissal test in section 98(4) of the Employment Rights Act 1996 in line with Article 10 ECHR (freedom of expression) although he had not raised Article 10 [3]. The EAT held that the Article 10 point did not 'shout out' from the way the claim was pleaded and presented [110]-[113], [122], that employment tribunals are not required to consider Convention articles as a matter of course in every unfair dismissal case or in every speech-related dismissal [117]-[120], and that permission to raise the Article 10 point for the first time on appeal was refused [130]-[137]. A separate ground based on section 43(1) of the Education (No 2) Act 1986 also failed because the omission made no difference to the outcome [150]-[152]. The language the University found to be gross misconduct included remarks about women, a student who was transitioning, disability and sexuality, which the appellant partly disputed [20]-[21]; the EAT did not review whether those findings were correct [11], [45].

Key provisions

• para-110 — Article 10 must "shout out" before a tribunal need consider it of its own motion : Per [108]-[113], the question is whether the Article 10 issue 'shouted out' from the way the claim was pleaded and advanced, a perversity test; it did not, because the thrust of the claim was procedural unfairness and the references to freedom of speech were to the university's own policy and the 2023 Act. Per [112], in most speech cases Article 10 will not affect the fairness of a dismissal and so need not be considered unless a party raises it. Per [113], the mere fact that the appellant was a lecturer dismissed for something connected with his speech did not mean Article 10 had to be considered; he was not dismissed for expressing unpopular views in his teaching or academic work but because the university was satisfied he had used language with students that could constitute harassment or be discriminatory.
• para-117 — No "matter of course" duty to consider Convention articles : Per [117]-[120], no obligation exists for an employment tribunal to consider of its own motion in every unfair dismissal case whether a Convention article may be relevant, nor in every case where the dismissal was for a speech-related reason, nor in a sub-set of speech cases; the 'matter of course' principle is limited to 'the most basic and standard building-block issues' for unfair dismissal claims [119]. Per [125], the judgment does not minimise Convention arguments in claims where they have been pleaded or referred to in the list of issues.
• para-130 — No permission to take the Article 10 point for the first time on appeal : Per [130]-[137], the EAT refused leave to rely on Article 10 for the first time on appeal: it is only in an exceptional case that the EAT allows a new point that could have been taken below, even from a litigant in person [131]; the point required evaluative judgments, including on aim, whether the dismissal was prescribed by law, rational connection, a lesser measure and balance [131], and the university would have led further evidence had it been raised [133]. Per [138], had the EAT found an error it would have remitted, and it had strong doubts the outcome would have differed but did not decide the Article 10 merits.
• para-20 — What the employer found to be misconduct : Per [20]-[21], the University's findings included, as gross misconduct, using misogynistic and divisive language by referring to women in the class almost exclusively as 'females'; misogynistic language in feedback on an actress; transphobic language when referring to a student who was transitioning as a 'troublesome trans kid', which the appellant denied although he accepted using the example of a student who was transitioning as an analogy; and ableist language; and as misconduct a joke about nail polish and a remark about stress. Per [27], the appeal panel found it less significant what the exact words were than that the appellant repeatedly gave messages that caused discomfort and created a hostile and offensive environment. Per [113], the EAT described five of the six incidents as misogynistic, transphobic, ableist, homophobic and/or boorish and hostile treatment of students, 'very far removed' from the kind of issue that would suggest he was being punished for exercising free speech in the academic context.
• para-47 — Dismissal was fair on ordinary principles; the equality and diversity policy mattered : Per [47](8), the tribunal held the University was entitled to treat improper behaviour towards students as gross misconduct under its disciplinary policy, reinforced by a policy that emphasised the need to adhere to equality and diversity principles and warned that breach might in serious cases lead to dismissal; the University could take account of the impact on students, of the appellant's lack of contrition and of the lack of confidence that he would not repeat the behaviour, although there had been no malice and his record was unblemished. Per [49], quoting the tribunal at its [133]-[134], the tribunal considered that 'within the law' in the university's free speech policy could encompass the University's obligations to students under the Equality Act 2010.
• para-150 — Section 43(1) of the Education (No 2) Act 1986: the omission made no difference : Per [139]-[152], the tribunal had considered the question whether the dismissal breached freedom of speech obligations under the 2023 Act, which was not yet in force, and decided it did not [149]; the failure to mention section 43(1) made no difference to the analysis or outcome [151], and a tribunal cannot be expected to know such a specific provision unless it is drawn to its attention [152]. Per [141], section 43(1) conferred a right to freedom of speech 'within the law', not an untrammelled right.

When relevant

Peripheral to the toolkit's central subject, but relevant to an employer that dismisses or disciplines a member of staff for what they said to students or colleagues, including remarks the employer treats as breaching an equality, diversity and inclusion policy: it shows a tribunal accepting that improper language towards students could be treated as gross misconduct, reinforced by a policy requiring adherence to equality and diversity principles, as a basis for a fair conduct dismissal on the facts of that case [47](8), and the EAT holding that a tribunal need not consider Article 10 of its own motion where it is not raised [110]-[125]. Not a decision on whether any particular remark was discrimination or harassment [11], [45], and not a decision on the merits of the Article 10 argument [138]. Decision support, not legal advice.