An employment tribunal has rejected a claim of unfair dismissal from a lecturer, who was fired from the University of Derby over “inappropriate and unprofessional language”. In the ruling, the judge wrote that the alleged “misogynistic, transphobic and ableist comments” were not protected by law, because they did not “constitute an academic line of conversation”.
Russell Cherrington had been a senior lecturer in Media and Film at the University of Derby for 13 years when he was suspended in December 2023 over student complaints regarding “remarks and comments” made during his classes. The complaints had come about as part of a review into the low National Student Survey (NSS) scores for the course on which Cherrington was teaching. Following an investigation into the comments, Cherrington was fired from the University on grounds of gross misconduct.
According to court documents, “there were four written accounts provided from students […] which alleged that [Cherrington] had made remarks which came to be described as misogynistic, transphobic and ableist”. These students were invited to provide further particulars, which resulted in testimonies of five instances of “inappropriate and unprofessional” language. To quote:
- Citing an example of the showing of a Madonna music video to demonstrate the benefits of ‘selling her body’;
- When reviewing a script for a project development module involving a character with autism the Claimant remarked that Universities were becoming a care home for people with disabilities;
- The discussion of a script at a group meeting, giving rise to comments by the Claimant about not accommodating a trans person struggling with their mental health;
- That during a discussion about diversity in the industry in a product development module the Claimant commented that people are hired to ‘tick boxes’, stopping ‘normal people from getting work’; and
- During the editing session for a music video, the Claimant commented that for the video to work the actress needed to be ‘out of his [the actor’s] league’.
The court documents further cited an allegation that Cherrington had referred “to the women in the class as ‘females’”, which apparently “created division within the group”.
Unfortunately the court records are so poorly written that it is hard to make out what Cherrington’s alleged comments were, or why they were considered offensive. Cherrington himself maintains that his comments were embellished and/or taken out of context. This may or may not be true. But even on the most unfavourable construction, it is impossible to see anything in the five remarks cited above that could be described as gross misconduct.
One point in the tribunal’s ruling deserves particular mention: the claim that the university’s dismissal of Cherrington did not violate his academic freedom since “the inappropriate and unprofessional comments did not constitute an academic line of conversation and was not part of, or arose from, the teaching material.”
Looking the above examples, it seems at least plausible that some of the statements were intended as academic comments, especially considering that they are not direct quotes but combined summaries of paraphrases given by offended students. Statements a. and e. can easily be interpreted as academic points. Furthermore, statements b. and d. could, depending on the context, be either attempts to challenge assumptions among students, or genuinely held – and therefore almost certainly protected – beliefs about recruitment practices in higher education.
Statement c. is so poorly summarised by the ruling that it is difficult to ascertain what is even being alleged. This appears to be, at least in part, because students differed in their recollections of the comments. According to court documents, three students recounted Cherrington “telling a story about, either having to deal with a ‘troublesome trans kid’ or having to ‘accommodate a trans person’”. Crucially, all three students agree that Cherrington was “telling a story” or “discussing a script” – presumably a core part of his job – rather than advancing a personal opinion about an actual trans person.
In short, there seems to be no basis for the claim that Cherrington’s comments “did not constitute an academic line of conversation”. In any case, the very idea of a sharp distinction between “academic lines of conversation” and more general discussion of social and political issues is nonsensical.
During the tribunal, Cherrington drew attention to clause 2.1.7 of the University of Derby’s own “How We Work” policy, which requires the university executive to “take all reasonable steps to ensure that academic employees have the ability within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or privileges”.
The judge at the tribunal found that this policy had not been violated, citing three reasons. First, Cherrington had himself failed to claim protection under this policy during the disciplinary proceedings. Second, the university was right in determining that the comments “could not reasonably be characterised as testing received wisdom” or putting forward unpopular opinions. Third, Cherrington’s comments may not have been “within the law” as the Equality Act 2010 requires that universities “must not discriminate against a student in the way it provides education”.
The first point misses the mark completely. Employees are covered by the protective policies of their employers regardless of whether they are aware of those policies or not. The second point does not make much sense either, considering that most, if not all, of the comments cited by the students could be reasonably characterised as putting forward controversial or unpopular opinions. Finally, even if we accept that some of Cherrington’s comments were tasteless or ill-conceived, it is a misinterpretation of the law to claim that they could have constituted “discrimination”.
Under the Equality Act, discrimination is defined as treating someone less favourably than someone else, because of a protected characteristic, such as age, race, religion or belief, etc. A barrage of offensive comments directed at particular students in class might count as discrimination. However, nothing that Cherrington is alleged to have said comes close to meeting this bar. In fact, it is not clear that any student even alleged discrimination. All four students merely recounted remarks that they had found upsetting, offensive or inappropriate.
A core part of Cherrington’s argument during the appeal process was that his sacking had been a disproportionate reaction to the complaints. This point is particularly salient given that both the University of Derby and the tribunal acknowledged that through 13 years of employment, Cherrington had “an unblemished personal record”.
Nevertheless, the tribunal denied that the sanction was too harsh because the remarks were made “despite [Cherrington] having received relevant training”. This is a reference to a number of online courses, centred on the University’s EDI, Disciplinary, and How We Work policies, which Cherrington undertook a year earlier. These (presumably rather dull) training videos should apparently have taught Cherrington how to properly conduct himself in a classroom setting. Instead, he went on, as the tribunal puts it, to engage “in behaviour toward the students that was discriminatory, [and] created an unsafe learning environment”.
How exactly Cherrington’s comments made students “unsafe” is left unspecified by the ruling, but that they did is nevertheless considered sufficient to render dismissal without warning after 13 years of employment an “appropriate” sanction. Once again, it is worth noting that the complaints are based on testimony given by four students several months after the end of course. There is no recording of the comments, nor any evidence of complaints filed at the time the comments were allegedly made.
Lastly, it is worth considering the comments made by the tribunal regarding the Higher Education (Freedom of Speech) Act. Cherrington had argued that his comments were protected under this law, but this claim was rejected by the tribunal because the relevant provisions of the Act “are not yet in force”. While this is legally sound – a tribunal cannot rule based on provisions that have not commenced – it is yet another reminder that the Government must stop stalling the implementation of the Act and let the final and most vital parts of it commence.
Moreover, it is a sign that Cherrington probably received poor legal advice. Of course, one cannot seek protection under a law that is not in effect, but there are many other protections for free speech and academic freedom in this country and Cherrington could very credible have claimed protection under any of these. However, this point was never considered by the tribunal, which seems outright scandalous.
Then again, since the judge ruled that Cherrington lost his protections under clause 2.1.7 because he failed to cite them during his disciplinary hearing, perhaps he also forewent his legal rights as an employee by not citing those during the tribunal. It cannot be the sole responsibility of the claimant to educate the judge as to what the law is, any more than it can be the task of the employee to inform his employers of their own policies.
Whatever one thinks of Russell Cherrington’s alleged comments, it should be crystal clear that he has been treated extraordinarily badly by the University of Derby’s appeals panel, and now also by the employment tribunal. Even if one considers his remarks inappropriate for the classroom, direct dismissal is a vastly disproportionate reaction to the first set of complaints in 13 years of employment, even if he had attended an online seminar on EDI the previous year.
This entire situation could have been handled by a conversation, either between teacher and student or between employer and employee. Instead, Cherrington is out of a job, significant resources have been wasted on yet another lengthy employment tribunal, and an extremely bad precedent has been set for the future.