Russell Cherrington v University of Derby

An Employment Tribunal is not generally required to raise Convention rights of its own motion in an unfair dismissal claim. It may err by failing to address an unpleaded issue where it plainly emerges from the case as presented, or where established issues must be considered as a matter of course. The latter category is narrow: Article 10 need not be considered in every speech-related dismissal.

Where Article 10 is engaged, it may affect the fairness assessment under section 98(4) of the Employment Rights Act 1996. A new Article 10 argument will be permitted for the first time on appeal only exceptionally, applying the ordinary principles for new points. A Tribunal’s failure to cite a relevant statutory provision does not warrant setting aside its decision where it made no difference to its reasoning or outcome.

Russell Cherrington, a Senior Lecturer in Media and Film at the University of Derby, was summarily dismissed for gross misconduct after the University found that he had used inappropriate and unprofessional language towards students. The Employment Tribunal dismissed his unfair dismissal claim following a hearing in March 2025.

On appeal, Cherrington argued that the Tribunal should have considered Article 10 of the European Convention on Human Rights, although he had not expressly relied on it; alternatively, he sought permission to raise that argument for the first time on appeal. He also argued that the Tribunal erred by failing to consider section 43(1) of the Education Act (No 2) 1986. The central questions were whether the Tribunal had a duty to raise those matters itself and, if not, whether either point could be advanced or succeed on appeal.

1. Appeal dismissed. The Tribunal did not err in law by failing to consider Article 10, and the Appellant was not permitted to raise the Article 10 argument for the first time on appeal. The statutory ground concerning section 43(1) also failed.
2. Article 10 may be relevant to whether dismissal is fair under section 98(4) of the Employment Rights Act 1996. If engaged, the Tribunal must reach its own view on whether dismissal involved a disproportionate and unjustified interference with the employee’s Convention rights. But Article 10 does not need to be considered automatically whenever dismissal relates to speech. The effect of speech on Article 10 depends on the circumstances.
3. The Tribunal’s role is arbitral, not inquisitorial. It has a wide margin of appreciation in deciding what assistance or intervention is fair to the parties. An unpleaded issue will rarely have to be raised of the Tribunal’s own motion. The relevant questions are whether it “shouted out” from the case as presented, whether it fell within a narrow, established category of matters considered as a matter of course, or whether fairness made it necessary to address it. Failure to raise the issue is an error only in exceptional circumstances, such as where the omission is perverse or fundamentally unfair. Neither a speech-related dismissal nor the lecturer’s reference to freedom of speech under University policy and the 2023 Act made Article 10 an issue that shouted out in this case.
4. The “matter of course” categories are limited to basic, established issues within the statutory claim being determined. They do not require a Tribunal to consider Convention rights in every unfair dismissal case or Article 10 in every speech case. A fact-specific reason to raise an issue belongs to the “shouts out” analysis, not a new general category of automatic consideration.
5. The Employment Appeal Tribunal generally will not consider an argument not advanced below. Although it has discretion to allow a new point, that discretion is exercised only exceptionally. Here, the Article 10 point required evaluative judgments and likely further evidence, so it was not a pure point of law that the Appeal Tribunal could fairly resolve on the existing material. Convention rights do not create an automatic exception to the ordinary rule.
6. The Tribunal considered whether the dismissal infringed freedom of speech, including the University’s obligations, and concluded that it did not. Its failure specifically to mention section 43(1) of the Education Act (No 2) 1986 made no difference to its analysis or outcome. The Tribunal was not required to identify that unpleaded provision as a matter of course, and it had considered the substance of the freedom-of-speech issue.
7. The alternative question of remittal did not arise. Had the Article 10 point been allowed, the Appeal Tribunal would have remitted the matter to the Employment Tribunal for redetermination, including further evidence and findings.

1. Employment Appeal Tribunal: Appeal dismissed.
2. Employment Tribunal, Nottingham: Unfair dismissal claim dismissed; judgment sent to the parties on 25 April 2025.