When does an Employment Tribunal need to consider Human Rights arguments of its own motion? Cherrington v University of Derby [2026] EAT 107 and freedom of speech
11 August 2026
In Cherrington v University of Derby [2026] EAT 107, the Mr Justice Cavanagh in the Employment Appeal Tribunal (“EAT”) held that an Employment Tribunal (“ET”) was not obliged to consider the Appellant’s Article 10 ECHR right to freedom of expression of its own motion when deciding whether or not his dismissal was fair. His right to freedom of expression did not “shout out” from his case, and nor was the ET obliged to consider the ECHR “as a matter of course” in unfair dismissal complaints, or even particular species of unfair dismissal complaints.
This case note briefly sets out the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.
Facts
The Appellant was a Senior Lecturer in Media and Film at the Respondent University. He was dismissed for gross misconduct after a disciplinary hearing found that he had used misogynistic, transphobic, ableist and homophobic language when speaking to students.
Representing himself, the Appellant brought a claim for unfair dismissal. Nowhere – not in his ET1, witness statement, or closing submissions – did he expressly refer to Article 10. There were a few vague references to freedom of speech in his witness statement and closing submissions, but his case was almost entirely concerned with procedural fairness.
The ET dismissed the claim. The dismissal fell within the range of reasonable responses and was not procedurally unfair. On appeal to the EAT, Mr Justice Cavanagh repeatedly emphasised that there was essentially no challenge to any aspect of the ET’s findings or its application of the law on these core issues, save for the Article 10 point.
The ET did not consider whether Article 10 might affect the analysis, the Appellant having not advanced a case on Article 10 or even referred to it.
The Appellant appealed. The essential issue for the EAT to determine was whether the ET should have specifically considered Article 10 ECHR when deciding whether the Appellant’s dismissal was fair.
This case note focusses on the central issue highlighted above but, for completeness, the Appellant also submitted that he should be permitted to rely upon the Article 10 argument on appeal, and that the ET had failed to consider s.43(1) of the Education (No 2) Act 1986. Both arguments were rejected.
Relevant principles
Firstly, the EAT confirmed (though it was not disputed) that the engagement of thr ECHR can be relevant to the consideration of fairness under s.98(4) of the Employment Rights Act 1996 (“ERA”) [60-77]. This is so regardless of whether the employer is a public body. If it is, then the Human Rights Act 1998 (“HRA”) applies directly by virtue of s.6 HRA. If it is not, then a s.3 HRA-compliant reading of s.98(4) ERA requires the same approach. The leading case is X v Y [2004] EWCA Civ 662. In short, a disproportionate and unjustified interference with an ECHR right takes a dismissal outside the band of reasonable responses.
Mr Justice Cavanagh then identified two strands of case law on whether an ET has an affirmative duty to consider an issue of its own motion. Those cases where an issue: i) “shouts out” from the claim form (or for some other reason, the fundamental duty of fairness makes it necessary for the issue to be considered by the ET) [87-97]; and ii) should be considered “as a matter of course” [98-105].
As to the first strand, the leading authority is Moustache v Chelsea and Westminster NHS Foundation Trust [2025] EWCA Civ 185. ET proceedings are adversarial, and the Judge’s role is “arbitral and not inquisitorial or investigative” [89]. ETs may wish to explore or clarify a party’s case, particularly where unrepresented, but that is a matter of discretion and will rarely qualify as an error of law. Otherwise, the ET is generally entitled to take the issues as those which emerge clearly from an analysis of the statements of case, generally distilled into a list of issues.
However, there are cases where an issue, though unpleaded, is “plainly being asserted” or “shouts out” [92]. An example is McLeary v One Housing Group Ltd (EAT, unrep, 6 February 2019). The unrepresented claimant claimed disability discrimination and constructive unfair dismissal, but did not claim that her constructive dismissal was an act of disability discrimination. It was held that such a claim should nonetheless have been addressed – it was “so obvious that it was perverse of the ET not to identify it” [92].
As to the second strand, a principle has developed since Langston v Cranfield University [1998] IRLR 172 that there are some issues which an ET is obliged to consider as a matter of course, even if not raised by the parties. This principle was approved by the Court of Appeal in Small v The Shrewsbury and Telford Hospitals NHS Trust [2017] EWCA Civ 882. In short, there are some principles that are of “such familiarity” and “so well-established” that an ET can be expected to consider them as a matter of course [101].
However, this principle is incredibly narrow. The only three examples identified by the appellate courts are i) the Langston v Cranfield redundancy questions; ii) the Burchell test; and iii) the heads of loss identified in Norton Tool v Tewson [104]. Mr Justice Cavanagh sounded a warning about expanding this principle any further, for fear of imposing an unreasonable burden on the ET.
Judgment
The EAT set out the issues as follows [108]:
(1) Did the issue whether Art. 10 is relevant to the Appellant’s unfair dismissal claim “shout out” from the way that his claim was pleaded and advanced? This is a “perversity” test: did the ET act perversely in failing to recognise that the Art. 10 issue shouted out from the way his case was presented;
(2) If not, was the ET obliged “as a matter of course” to consider whether Art. 10 was relevant to the Appellant’s claim for unfair dismissal?; and
(3) Again if not, on the facts of the case, was the ET’s failure to address Art. 10 fundamentally unfair to the Appellant?
The answer to the first question was a resounding ‘no’ [109-113]. There was no shouting to be found in the fact that he used the words “freedom of speech” on a handful of occasions in a case that was overwhelmingly concerned with procedural fairness; nor in the fact that the Appellant’s dismissal related to things he had said. As was clear from X v Y, and acknowledged by the Appellant before the EAT, Article 10 issues will not arise in the vast majority of cases based on dismissal for speech-related reasons. The fact that the Appellant was a university lecturer did not take the case outside of that majority.
As to the second question, the EAT held that there was no general obligation on the ET to consider ECHR rights in every unfair dismissal claim [117]; nor less in every such claim concerning dismissal for speech-related reasons [119]; nor less in particular categories of such ‘speech cases’ [120]. The first two categories would impose an unreasonable burden on the ET. The third would be nonsensical. If the ET is deciding whether the nature of the claim means that a particular Article 10 issue arises, then it no longer arises as a matter of course. It is in fact just another way of saying that the issue ‘shouts out’ – i.e., the issue arises as a matter of course because of the way in which it has been pleaded and presented.
There was also no fundamental unfairness – a category reserved for instances such as a pleaded claim being inadvertently omitted from the list of issues [121-123].
Comment
Both the ‘shouts out’ and ‘matter of course’ principles are narrow in application. It is difficult to see how this case could have come within either. Whispering ‘freedom of speech’ in a handful of isolated paragraphs was hardly shouting Article 10 from the rooftops. And the suggestion that Article 10 should be considered in every unfair dismissal claim, or even in every ‘speech case’, would extend the principle far beyond the rare instances in which it has been held to apply. This was clearly identified by the Appellant, who only sought to suggest that Article 10 arose as a matter of course in a subset of speech cases. However, framing the principle in such terms stretched it to breaking point – if Article 10 might only arise in a small subcategory of speech cases, then it can hardly be said to arise as a matter of course.
Perhaps it was thought that the vague apparent context – fears over freedom of speech, university campuses, cancel culture etc. – warranted a different outcome. But, as the EAT held, “the Appellant was not dismissed because he was expressing unpopular or unfashionable views in the course of his teaching or his academic work”. He was dismissed for “misogynistic, transphobic, able-ist, homophobic, and/or, boorish, and hostile treatment of students” [113]. Perhaps things might have been different if there were genuinely weighty issues of freedom of expression involved, such that the outcome may have had a ‘chilling’ effect on academic expression. However, in reality, I expect even an unrepresented claimant dismissed for expressing reasonably held but unfashionable views would have no difficulty saying so explicitly. That the references in the Appellant’s case to ‘freedom of speech’ were so few and vague is merely indicative of the fact that his was a case without any genuine freedom of expression issue at all.
For practitioners, the salient points emerging from the judgment are as follows:
- Firstly, a reminder that a disproportionate and unjustified interference with an ECHR right can take a dismissal outside the band of reasonable responses.
- Secondly, ‘shouting out’ is a high hurdle. The touchstone is an issue which, although not pleaded or relied upon, is so obvious that it would be perverse of the ET not to identify it.
- Thirdly, issues which arise as a ‘matter of course’ are few. The principle does not encompass the relevance of Article 10 to ‘speech’ dismissals.
- Fourthly, the EAT’s reasoning as to the ‘matter of course’ principle expressly applies to all ECHR Articles [115]. Whether the potential issue is private life (Article 8), freedom of thought, conscience and religion (Article 9), or protection from discrimination (Article 14), there is no obligation for the ET to consider its relevance to the fairness of a dismissal unless that issue is pleaded (or, otherwise shouted).
Otherwise, in terms of the legal analysis, the general tenor of the judgment was clearly not just that these principles are narrow, but that they should stay so. And for good reason. It would be far too onerous to expand the categories of issues which ETs are obliged to identify of their own volition, without them having been identified by the parties. Whilst the assistance that many ET Judges provide to the large number of unrepresented litigants that appear before them is to be welcomed, the ET cannot be expected to identify for itself the arguments which a claimant could have made but has failed or chosen not to. To do so would be incompatible with its arbitral role in adversarial proceedings.
Lance Baynham is a barrister at 1 Crown Office Row.
