EAT clarifies when tribunals must consider Article 10 in speech-related dismissals

Article 10 and academic freedom

Dismissals arising from an employee's speech or expression can sometimes engage wider legal protections relating to freedom of expression. However, this does not mean that every speech-related dismissal automatically raises an Article 10 issue.

Article 10 of the European Convention on Human Rights (ECHR) protects the right to freedom of expression. In an employment context, it may be relevant where disciplinary action or dismissal is based on something an employee has said or expressed. For university staff, Article 10 can also encompass the principle of academic freedom, although that right is qualified and may be restricted where necessary to protect the rights of others or for other legitimate reasons.

Separately, universities in England are now subject to duties under the Higher Education (Freedom of Speech) Act 2023 (Freedom of Speech Act) to protect lawful freedom of speech and academic freedom. Although those provisions were not yet in force when the events in this case occurred, the claimant relied on them during his internal appeal and before the employment tribunal as part of his argument that his dismissal infringed his freedom of speech.

What were the facts of the case?

In Cherrington v University of Derby, the claimant was employed as a Senior Lecturer. Following complaints about his conduct towards students, the respondent investigated allegations that he had used inappropriate and unprofessional language.

The claimant disputed some of the allegations and argued that others had been misunderstood or taken out of context. Following a disciplinary hearing, the respondent dismissed him for gross misconduct. His appeal was unsuccessful.

The claimant brought an unfair dismissal claim in the employment tribunal. He did not rely on Article 10 in his claim or during the tribunal proceedings.

The employment tribunal found that the dismissal was fair. The claimant appealed to the Employment Appeal Tribunal (EAT), arguing, among other things, that the tribunal should have considered, of its own initiative, whether his dismissal interfered with his right to freedom of expression under Article 10.

VWV acted for the respondent University in the employment tribunal and successfully defended the appeal in the EAT.

EAT decision

The EAT dismissed the appeal. It confirmed that Article 10 can be relevant when determining whether a dismissal is fair. However, in this case the claimant had not relied on Article 10 before the tribunal, and the issue did not "shout out" from the way his case had been pleaded and presented.

The claimant's case focused primarily on alleged procedural unfairness, the reliability of the allegations and the severity of the sanction. Although he referred to freedom of speech, he did so in the context of the respondent's policies and the Freedom of Speech Act, rather than by relying on Article 10.

The EAT emphasised that tribunals are not required to consider Article 10 in every unfair dismissal case involving speech, or Convention rights in every unfair dismissal case. However, it recognised that there may be cases where the nature of the claim makes it sufficiently obvious that Article 10 is engaged, even if it has not been expressly pleaded. The question is whether the issue "shouts out" from the way the case has been advanced. The EAT concluded that this was not such a case.

Learning points

The decision confirms that Article 10 is not a free-standing issue that employment tribunals must consider in every unfair dismissal case involving speech. Whether it needs to be addressed will depend on the way the claim has been pleaded and presented and whether the Article 10 issue "shouts out" from the case.

However, employers should not assume that the absence of an express reference to Article 10 means it can safely be ignored. The EAT recognised that, in some cases, the facts and issues may make it sufficiently obvious that Article 10 is engaged, even if it has not been specifically pleaded. Employers should therefore remain alert to potential Article 10 issues, particularly where disciplinary action concerns the expression of views or opinions in an academic or other context in which freedom of expression may be engaged.

For more information or advice, please get in touch with Khadija Khatun in our Employment team.