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In this case the Employment Appeal Tribunal (‘EAT’) considered whether Employment Tribunal’s must take into account Article 10 of the European Convention on Human Rights (‘ECHR’) (Freedom of Expression) when determining the fairness of a dismissal, even where the Claimant has not expressly relied upon the Article 10 during the proceedings.
The Claimant was a senior lecturer who was summarily dismissed for gross misconduct after the Respondent concluded that he had used inappropriate and discriminatory language when speaking to students, including comments found to be misogynistic, transphobic and ableist. The Tribunal rejected the unfair dismissal claim, finding the dismissal fell within the range of reasonable responses available to the employer.
On appeal, the Claimant argued that his dismissal engaged principles of academic freedom and freedom of expression, and the Tribunal should have considered Article 10 when assessing whether the dismissal was fair. The Claimant further contended that as a university academic his comments should have been analysed through the lens of academic free-speech protections. The EAT rejected the appeal. It held that Tribunals are not required to consider Article 10 of their own motion in every unfair dismissal claim involving speech related conduct. While Article 10 may be relevant in some dismissal cases, the issue must either be expressly raised or be sufficiently obvious from the way the claim is pleaded and argued. The EAT concluded that the Article 10 point was not raised from the Claimant’s case and the Tribunal had not erred by failing to address it.
If you are dealing with a potential disciplinary or dismissal issue involving employee speech or conduct, contact Backhouse Jones’ Employment team for advice.
This article was written by Gabrielle Scriven.