Paul Wilson successfully defended the appeal of Cherrington v University of Derby in the Employment Appeal Tribunal. The case has attracted mainstream press attention because of the freedom of speech issues raised.
Mr Cherrington was a lecturer at the University of Derby; he was dismissed on the grounds of gross misconduct after making a series of inappropriate and unprofessional comments to students. The language used was found to be misogynistic, transphobic and ableist. He brought a claim for unfair dismissal in the Nottingham Employment Tribunal and that claim was dismissed.
He appealed on the basis that the Employment Tribunal had erred by failing to treat his case as one to which Article 10 ECHR (Freedom of Expression) applied and that if it did the conclusion could be drawn that his dismissal was an unjustified interference with his Article 10 rights. Mr Cherrington had not expressly advanced this argument at the Employment Tribunal. However, in his particulars of claim, he made a reference to his grounds of appeal in the disciplinary proceedings which included that his dismissal constituted a breach of the Higher Education (Free Speech) Act 2023.
The case establishes that in general Employment Tribunals do not have an affirmative duty to refer to and consider the Convention Articles in unfair dismissal cases as a matter of course where the parties have not pleaded or relied on them. An exception may arise where, although not pleaded or identified in the list of issues, the issue “shouts out” from the claim form or where the fundamental duty of fairness requires that the issue should have been raised and considered by the Employment Tribunal.
Paul was instructed by Katie Hirst and Khadija Khatun at VWV Solicitors to represent the University at both the Employment Tribunal and the Employment Appeal Tribunal.
News Coverage:
Derbyshire Live
https://www.derbytelegraph.co.uk/news/derby-news/dismissed-university-derby-lecturer-who-11085161
