Free speech, not free for all

In other words, it’s clear that academic freedom of speech – perhaps something argued in the course of teaching, or justified in an essay, enjoys a high degree of protection. The Rugby Club engaged in “banter” on a social in the SU bar, not so much.

It sets no legal precedent, but a new employment tribunal decision illustrates the point.

Russell Cherrington was a senior lecturer at the University of Derby who raised concerns in November 2023 about poor management within his department and the leadership of the Film and High-End TV programme.

That year, the course had received very low scores in the National Student Survey, prompting a series of internal meetings. During those encounters, students made a series of complaints about Cherrington’s conduct and comments, which they found inappropriate and upsetting – some reportedly to the point of tears. A subsequent HR investigation was launched, during which Cherrington was suspended from student-facing duties.

Complaints from students included remarks allegedly deemed misogynistic, transphobic, and ableist, such as referring to students as “females” and making a comment involving a “troublesome trans kid”.

He is also said to have said that universities were becoming “like care homes” for people with disabilities and said minorities were hired to “tick boxes”, stopping “normal people” from finding employment. The hearing was also told that he deployed a Madonna music video to demonstrate the benefits of “selling her body” and described another actress in another video as not “attractive enough”.

Although Cherrington denied using some of the phrases and claimed the group may have colluded, the investigating officer and disciplinary chair found the allegations credible and substantiated. A disciplinary hearing in April 2024 concluded that the remarks amounted to gross misconduct, with the impact on students and Cherrington’s lack of insight contributing to the recommendation of dismissal.

Cherrington appealed, arguing the punishment was excessive, that informal resolution should have been attempted, and that his dismissal violated his rights under the Higher Education (Freedom of Speech) Act 2023. But the appeal panel, composed of three governors, rejected all three grounds. They concluded the behaviour was discriminatory and harmful, was not protected speech linked to academic content, and that students’ prior silence did not undermine the seriousness of their later complaints.

What about freedom of speech?

If we set aside the extensive material in the tribunal judgement on process, it’s worth a look at the freedom of speech arguments.

First, the tribunal noted that the relevant provisions of the Free Speech Act were not yet in force – but the tribunal still assessed whether the spirit of the law and whether the university’s own policies on academic freedom were breached.

Cherrington had argued, both in his appeal and at the tribunal, that his comments were part of legitimate academic discourse – testing norms, expressing controversial views, and thus protected. He pointed to clause 2.1.7 of the university’s “How We Work” policy, which encourages academic employees to “question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions” without risking their jobs.

But the tribunal dismissed this argument on several fronts.

The tribunal accepted the university’s characterisation of the remarks – referring to women as “females,” commenting on a transgender student, and making derogatory observations about students with disabilities – not as controversial academic opinions, but as discriminatory and inappropriate conduct. The remarks were considered misconduct, not intellectual inquiry.

Even within the university’s own policy, academic freedom is qualified by the phrase “within the law”. The tribunal found this could reasonably include compliance with the Equality Act 2010, especially section 96, which bars discrimination in education. The university’s determination that such speech may have constituted harassment or discrimination under the Equality Act was not deemed unreasonable by the tribunal.

The tribunal also found that the comments did not arise from teaching materials or structured debate, but instead from spontaneous, unprofessional remarks made in class. As such, it found that they were not protected expressions of academic inquiry, nor were they examples of challenging received wisdom or presenting new ideas.

The tribunal found that the appeal panel had rightly given “little weight” to the academic freedom argument, and the tribunal found no unfairness in that approach. It was, in its view, within the range of reasonable responses for the university to conclude that the comments were conduct breaches, not protected speech.

One of the interesting aspects of the case is the way in which, both on process and content, the issues might have interacted with OfS had the Free Speech Act been in force. On the former, presumably Cherrington could have made a complaint into OfS’ scheme – and on the latter, we can’t be sure that OfS’ decision would have been similar.

What is clear is that the further you are from the strict academic context of conduct, the less you’re able to rely on free speech rights to justify behaviour that others find to be a problem. This makes a lot of sense to most people – we now just need the regulator, which will shortly be ramping up expectations on providers both over harassment and free speech, to issue guidance that recognises it too.