The Employment Appeal Tribunal (EAT) has dismissed former University of Derby lecturer Russell Cherrington’s appeal against the rejection of his unfair-dismissal claim – his termination for gross misconduct followed complaints by four students about remarks allegedly made during teaching sessions concerning transgender students, women in the media and the resilience required for university-level study.
The ruling, handed down by Mr Justice Cavanagh on 27 July, rejected Cherrington’s central argument because, when representing himself before the original tribunal, he had not argued that his dismissal interfered with his right to freedom of expression under Article 10 of the European Convention on Human Rights.
As a result, the judgment leaves unresolved several important questions raised by the earlier decision about the scope of legal protection for academic freedom, including what counts as an “academic line of conversation”, whether spontaneous classroom discussion attracts Article 10 protection, and when a university’s view that speech is discriminatory or amounts to harassment under the Equality Act 2010 may place it beyond that protection.
The complaints arose against the background of poor National Student Survey scores for the University’s Film and High-End TV Programme. As the judgment records, there was, at the time, “a dysfunction in the management of the school”, which was “having an adverse effect on delivery and on staff and student relationships”.
At a meeting convened by the Head of School and the Dean to discuss concerns raised by the survey, students complained about the quality of teaching across the programme, including that of several lecturers, as well as remarks attributed specifically to Cherrington. An investigation followed, during which four second-year students provided written accounts of comments said to have been made by him during classroom discussions, script reviews and practical teaching exercises.
Cherrington, who had an unblemished disciplinary record, maintained throughout that the students had colluded and embellished or misquoted his words because of their broader dissatisfaction with the course.
During the investigation, he identified eight students who, he said, could speak to his teaching and treatment of students. None was interviewed. The Dean concluded that this was unnecessary because they had not been identified as direct witnesses to the disputed remarks and because “he did not consider that he should weigh what might have been positive accounts of [Cherrington] against the allegations of inappropriate and unprofessional language”.
Cherrington was ultimately found to have committed gross misconduct on four grounds.
The University concluded that he had used “misogynistic and divisive language” by referring to women in the class as “females”. Cherrington said that he had done so only at the beginning of the semester, before he knew the students’ names, and had stopped thereafter.
It also found that, while giving feedback on a music video, he had made misogynistic remarks by suggesting that the lead actress was not attractive enough for the role. Cherrington accepted saying something to that effect but disputed that it was harmful.
A third finding concerned his alleged description of a transitioning student as a “troublesome trans kid”. Cherrington denied using that phrase, although he accepted referring to a transitioning student as part of an example intended to convey that he would support students from any background.
The final gross-misconduct finding arose from a script review involving an autistic character, during which Cherrington was alleged to have remarked that universities were becoming “a care home for people with disabilities”. He denied making the remark.
Separate findings of misconduct were also made in relation to a comment about a male student’s nail polish and a discussion of student stress and lack of sleep, during which Cherrington was said to have suggested that this showed students were working hard and formed part of university life. He maintained that this latter remark had been taken out of context and was not directed at any particular student.
The University concluded that the remarks had been made and characterised Cherrington’s conduct as misogynistic, transphobic, ableist and, in one instance, homophobic. The Employment Tribunal later held that his dismissal for gross misconduct was fair.
The appeal did not invite the EAT to revisit those factual findings or decide afresh whether the University had been right to characterise the remarks in those terms. Cherrington’s case was narrower, arguing that the tribunal should have assessed the fairness of his dismissal in light of Article 10, despite his not having advanced that argument below.
Mr Justice Cavanagh rejected that submission, holding that the Article 10 issue had not “shouted out” from the way Cherrington had pleaded and presented his case and the tribunal was not required to raise it of its own motion.
Permission to advance the point for the first time on appeal was also refused, since a proper proportionality assessment would have required further evidence and a series of evaluative judgments: whether the University was pursuing legitimate aims, such as protecting students from discriminatory conduct and maintaining discipline and confidence in the institution; whether dismissal was rationally connected to those aims; whether a lesser sanction would have sufficed; and whether the benefit achieved justified the interference with Cherrington’s freedom of expression.
Because that exercise would have required the University to present further evidence about the academic context, its freedom of speech and harassment policies, Cherrington’s contractual obligations and the extent to which the disciplinary allegations engaged Article 10, the EAT concluded that it lacked the factual material necessary to determine the point and dismissed the appeal without deciding whether the dismissal was, in substance, a justified and proportionate interference with academic freedom.
The result is, of course, disappointing for Cherrington himself. But it is also disappointing for academics hoping the appeal would clarify whether tribunals should apply more searching scrutiny in dismissal cases involving academic speech, rather than relying solely on ordinary unfair-dismissal principles.
What the EAT did confirm, however, was that Article 10 can be relevant to the assessment of fairness under section 98(4) of the Employment Rights Act 1996, which requires tribunals to determine whether a dismissal was fair in all the circumstances. Where Article 10 is engaged, an employment tribunal must form its own view as to whether dismissal was a disproportionate and unjustified interference with freedom of expression. If it was, the dismissal would fall outside the range of reasonable responses, irrespective of the employer’s own assessment.
Put another way, it may matter in law that the speaker is a lecturer addressing students in a seminar room rather than, say, a window-manufacturing salesman holding forth in the staff room. But because the Article 10 issue was never distinctly advanced before the Employment Tribunal, the EAT did not decide whether that distinction mattered on the facts of Cherrington’s case.
It is true that Mr Justice Cavanagh described five of the six incidents as “very far removed” from the kind of issue that might raise concerns about punishment for academic expression, concluding in that context that no question of a chilling effect arose. But those observations were made in deciding whether the Article 10 issue should have been recognised by the Employment Tribunal, not following the full proportionality assessment which the judge himself held would have required further evidence, evaluative findings and, necessarily, Cherrington’s own presentation of the Article 10 case. Interestingly, in later obiter remarks, and despite expressing “strong doubts” that the outcome would have been different, the judge acknowledged that he could not be sure and that the shape of the case might have been “very different” had Article 10 been “front and centre”.
As a consequence, the judgment leaves unresolved whether the original tribunal was right to accept the University’s characterisation of Cherrington’s comments as falling outside the scope of protected academic expression because they “did not constitute an academic line of conversation and [were] not part of, or [did] not arise from, the teaching material”.
The ET’s reasoning therefore survives procedurally, and the risk is that it may now be cited by senior administrators in future cases, or find its way into training guides and staff codes of conduct, despite never having been tested through a full Article 10 analysis.
The difficulty with so narrow an understanding of an “academic line of conversation” is that university teaching rarely proceeds solely through pre-scripted lectures or formally approved curricular material. Much of it – particularly in seminars, workshops and studio-based disciplines – depends on exploratory discussion, provocation, improvised examples and the testing of ideas in real time. Yet the procedural basis of the appeal meant that the EAT laid down no general test for when spontaneous classroom exchanges remain protected academic speech and when, following student complaints, they may properly be treated as ordinary workplace misconduct.
A second unresolved issue concerns the meaning of the words “within the law”. The original tribunal found that the University had not acted unreasonably in determining that Cherrington’s remarks did not amount to questioning received wisdom or expressing controversial or unpopular opinions. In reaching that conclusion, it considered the University’s How We Work policy, which protected academics’ ability, “within the law”, to “question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions”.
The tribunal held that this qualification could encompass the University’s obligations to students under the Equality Act 2010, including the prohibition on discrimination in the provision of education.
The EAT did not separately examine whether that Equality Act reasoning was legally correct. Instead, it held that the original tribunal had considered the University’s freedom-of-speech obligations and that reference to the statutory duty then contained in section 43 of the Education (No. 2) Act 1986 would have made no difference to its analysis or the outcome. It therefore did not decide whether any of the remarks met the legal test for discrimination or harassment, or whether a university’s own assessment of Equality Act risk is sufficient to place classroom speech beyond the protection of academic freedom.
There is of course no serious argument that academic freedom protects unlawful discrimination. But if “within the law” is applied through a university’s own characterisation of speech as discriminatory or harassing – without that characterisation being independently tested against the statutory thresholds, the context and the claimed pedagogical purpose of the remarks – controversial, provocative or simply clumsily expressed classroom discussion may be placed beyond academic-freedom protection before any demanding analysis of whether the speech was in fact protected has taken place.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.