The Point Nobody Argued: Cherrington and the Limits of the Tribunal's Own Motion

The claim form ran to a narrative. It used the phrase "constructive dismissal" about a man who had been sacked outright, on the spot, for what he said to his students. Reading it two years later, Cavanagh J observed with some delicacy that the document had not been drafted by a person with legal knowledge.

It had not.

In Russell Cherrington v University of Derby [2026] EAT 107 a senior lecturer in media and film was summarily dismissed for gross misconduct after four students complained about his language in class. He represented himself before the Employment Tribunal and lost. On appeal he was represented by Professor Alan Bogg, and the University by Paul Wilson, counsel at St Philips Chambers. The argument that arrived at the Rolls Building was one that had never been made in Nottingham: that section 98(4) of the Employment Rights Act 1996 had to be read compatibly with Article 10 of the Convention, which protects academic freedom of expression, and that the Tribunal should have worked this out for itself.

The appeal was dismissed. In dismissing it, Cavanagh J has done something more useful than decide a free speech case. He has tidied up the law on when a tribunal must take a point that nobody put to it.

Two strands, pulling apart

Practitioners have been running two lines of authority together for years: they are not the same thing.

The first asks whether the point "shouted out" from the case as presented. It runs through Drysdale v Department of Transport [2014] EWCA Civ 1083 and Mervyn v BW Controls [2020] EWCA Civ 393 to Moustache v Chelsea and Westminster NHS Foundation Trust [2025] EWCA Civ 185, where Warby LJ set out the modern position. Proceedings are adversarial. Pleadings matter. The tribunal is arbitral, not inquisitorial, and it has no general duty to prompt a party to improve their own case. A failure to take a point is an error of law only if no reasonable tribunal would have missed it. That is a perversity test, and Cavanagh J confirms it applies whether or not the point ever crossed the judge's mind.

The second strand asks whether the point had to be considered "as a matter of course". It begins with Langston v Cranfield University [1998] IRLR 172, an ex tempore judgment holding that a redundancy unfair dismissal claim implicitly puts consultation and alternative employment in issue whether pleaded or not. From those small beginnings a principle grew.

How far had it grown? And why does the question keep arriving through litigants in person?

Not far at all, is the answer. Agreeing with HHJ Auerbach in Whitaker v White Rose Academies Trust [2026] EAT 43, Cavanagh J holds that the established categories are few and long-settled: consultation and alternative employment in redundancy; the liability criteria in BHS v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17; and the heads of loss in Norton Tool Co Ltd v Tewson [1972] ICR 501. Every one of them concerns the ordinary application of a single statutory test the tribunal is already applying.

What the second strand does not include is Small v The Shrewsbury and Telford Hospitals NHS Trust [2017] EWCA Civ 882, which had been read as authority that a tribunal must consider stigma loss under Chagger v Abbey National plc [2009] EWCA Civ 1202 of its own motion. Underhill LJ used the phrase "as a matter of course", but he said expressly that he was not laying down a universal rule. Small, on this analysis, is a "shouts out" case wearing the wrong label. So, on the same reasoning, is Ian Bugden v The Royal Mail Group Limited [2024] EAT 80. The list, properly understood, has not grown since 1998.

Speech does not shout out

Which left the appellant needing Article 10 to shout out from an ET1 that never mentioned it.

It did not. The thrust of the pleaded case was procedural: he had not been warned, the investigator was not impartial, his eight witnesses were never contacted, the chair of the disciplinary should not have been the chair. Where free speech appeared at all, it was as a complaint about the University's own policy and about the Higher Education (Freedom of Speech) Act 2023, which the appellant had drawn to the panel's attention in the mistaken belief that it was already in force.

The reasoning that will travel beyond universities is at paragraph 112, and it starts from X v Y [2004] EWCA Civ 662, where Mummery LJ held that Convention rights are blended with the law of unfair dismissal rather than sitting outside it, and that in the ordinary case a dismissal found fair under section 98 will not be incompatible with them. Being dismissed for something you said does not, by itself, put Article 10 in issue. In the great majority of speech cases the Article makes no difference to the fairness of the dismissal and need not be considered at all. Five of the six findings against Cherrington concerned misogynistic, transphobic, ableist, homophobic or simply hostile treatment of students, which is a long way from punishing a lecturer for unfashionable views. This was a case about how a man spoke to students, not about what he was permitted to think.

Cavanagh J then closes the wider door. There is no duty to consider Convention Articles as a matter of course in unfair dismissal claims generally. There is no narrower duty confined to speech cases. If there were, tribunals would have to triage every case for latent Convention points, and no principle would confine the exercise to Article 10: dismissals touching private conduct would summon Article 8, and so on through the Convention. The burden would be excessive, and possibly impossible.

The door marked "new point on appeal"

The alternative argument was that the EAT should let the point in for the first time on appeal. It was refused on the orthodox grounds collected in Secretary of State for Health v Rance [2007] IRLR 665, the first and most important of which is that the point be one of pure law requiring no further factual enquiry. Article 10 here is not. Deciding it would require a proportionality assessment the Tribunal never made, on evidence the University never called because it had no reason to think free speech was in issue, and had therefore been deprived of the chance to lead.

Two propositions are worth noting for the future. Convention points attract no special indulgence: the EU law principle that national courts must consider Community law points not raised by the parties does not extend to them, and the contrary reading of London Borough of Wandsworth v Vining [2015] UKEAT 0234_13_1812 is confined to points of pure law. And being a litigant in person is not itself an exceptional circumstance.

Had the appeal succeeded, the case would have gone back to the Tribunal rather than being decided in the EAT, following Jafri v Lincoln College [2014] EWCA Civ 449. Cavanagh J records strong doubts that the outcome would have differed. He did not need to decide it, and did not.

Practical takeaways

1. Plead the Convention point or lose it: if Article 10, 8 or 9 is doing real work in a dismissal, it goes in the ET1 and in the agreed list of issues. Neither the tribunal nor the EAT will supply the omission.
2. Fix the list of issues in writing at a preliminary hearing. Cherrington's was agreed on the morning of the hearing: an earlier one is the cheapest protection against this appeal.
3. Treat the "as a matter of course" categories as closed — redundancy consultation and alternative employment, the Burchell and Iceland Frozen Foods criteria, the Norton Tool heads of loss. Small and Bugden are "shouts out" cases wearing the wrong label: do not cite them as extending the list.
4. Do not count on rescuing the point on appeal. Convention points attract no special indulgence, Vining is confined to points of pure law, and litigant-in-person status is not an exceptional circumstance.
5. For respondents, refuse the invitation to argue points the claimant has not taken and keep the pleaded case narrow: the University succeeded precisely because Article 10 was never in issue, its evidence having been assembled accordingly.

There is no comfort in this for unrepresented claimants. Cherrington lost a point he could not have been expected to know existed, argued eventually by one of the country's leading labour lawyers, and lost it because he had not thought of it himself when it mattered. The tribunal that heard him did nothing wrong. The system simply does not contain a mechanism for supplying what he lacked, and Moustache explains why one cannot be built without the tribunal descending into the arena.

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