Hewston v Ofsted

Employee could not be expected to know that single incident involving pupil would warrant dismissal.

Facts of Hewston v Ofsted

Mr Hewston (the “claimant”) was employed by OFSTED (the “respondent”) as a Social Care Regulatory Inspector, before he was summarily dismissed for gross misconduct on 21 November 2019.

During a school inspection on 8 October 2019, the claimant brushed water off the head and touched the shoulder of a 12/13 year old student. This was after the students were caught in the rain during a PE lesson.

The school reported the incident to the other OFSTED inspector who was present on the day, and to the Local Authority Designated Officer. In the report, it was noted that the teacher thought the student looked uncomfortable/embarrassed by the incident and commented to another student that he was not happy. Subsequently, the student completed an incident form.

The headteacher also wrote to the respondent complaining in relation to a number of issues arising during the inspection, including the incident in question.

The claimant did not believe that his actions were inappropriate, as he did not think the student felt uncomfortable, and the claimant was simply wiping the rain from the student’s head. The claimant had a clean disciplinary record prior to this incident.

The disciplinary charges the claimant faced were:

• The claimant, without consent or invitation, touched a child on the head and shoulder;
• The claimant’s actions were inappropriate and contrary to the Respondent’s core values, professional standards and Civil Service Code;
• The claimant’s actions caused a breach in the Respondent’s trust and confidence in the Claimant’s role; and
• The claimant’s actions damaged the Respondent’s reputation.

Despite the claimant being clear that he would not take the same action again, and expressing willingness to undergo training, he was dismissed for gross misconduct.

The dismissal letter was clear that the claimant was not considered a risk to children and had not done anything amounting to “harm” or a “safeguarding breach”. However, the respondent was concerned that the claimant had not shown remorse and/or had brought OFSTED into disrepute.

The claimant appealed this decision, claiming that there was a lack of clear guidance from the respondent regarding physical contact with children. The claimant also indicated that he was happy to undertake any necessary training on this issue. The appeal was dismissed after a five day hearing.

Employment Tribunal

The claimant issued a claim against the respondent for unfair dismissal and wrongful dismissal.

This claim was rejected, and it was found that the respondent had conducted a fair and reasonable investigation and there had been no wrongful dismissal. The ET was clear that whilst it might have considered a lesser sanction appropriate, it was not for it to substitute its views for that of a reasonable employer.

Employment Appeal Tribunal

The claimant then appealed to the Employment Appeal Tribunal, where it was held that:

• The claimant had been unfairly dismissed; and
• The ET’s finding on wrongful dismissal was quashed and the matter was remitted back to the ET for determination.

The Employment Appeal Tribunal’s reasoning for upholding the claim of unfair dismissal was that the claimant did not receive any appropriate warning that this single incident would amount to gross misconduct and therefore dismissal. The respondent did not appear to have a “no touch” policy, the policies were not clear that this action would amount to gross misconduct, there did not appear to be any safeguarding issues and the claimant had not undergone any relevant training.

The dismissal was also found to be procedurally unfair as key documentation had not been shared with the claimant during the disciplinary process.

Court of Appeal

The respondent has since appealed the unfair dismissal claim. This appeal was heard at the Court of Appeal on 17 October 2024.

The Court of Appeal found that the Employment Appeal Tribunal’s finding of unfair dismissal was correct.

The Court of Appeal gave the following findings:

• The claimant’s dismissal was substantively unfair because the respondent did not make it clear to the claimant that he could be dismissed for behaving in this way – i.e. the claimant could not reasonably be expected to know that his conduct was of a kind warranting dismissal.
• If a particular act is not listed as an example of gross misconduct in the employer’s policies, an employer must consider whether the employee could reasonably be expected to know that the act will be treated as serious misconduct. The Court of Appeal found that in this case, it was not reasonable to expect the claimant to realise his conduct would result in dismissal, due to the absence of a ‘no touch policy’ and lack of training.
• Adding to this, there was never a suggestion of any improper motive on the claimant’s part.
• Failure of contrition or insight does not allow the employer to increase or “bump up” the seriousness of the conduct. However, the court did recognise that there may be instances where the distinction between the employer’s attitude and the seriousness of the conduct will be difficult to distinguish between.
• Loss of trust and confidence, and risk of reputational harm, can be factors in establishing a decision, but they cannot be the stand-alone reason for a disciplinary sanction.
• Employees must be provided with copies of all relevant documents before a decision is made, unless there is a good and well thought out reason for withholding particular documents. This is particularly important in cases where the sanction is serious.

Key Takeaways from Hewston v Ofsted

• It is worth thinking carefully about the examples of gross misconduct set out in your policies. Although the list cannot be exhaustive, the tribunal will consider whether the employee could have reasonably regarded their behaviour to amount to gross misconduct.
• Particularly where staff work with vulnerable individuals, it is worth having clear guidance on expectations around interactions, backed by appropriate training.
• The weight given to a lack of contrition and insight will depend on the circumstances of the case. However, on its own, it is not likely to increase the seriousness of the conduct.
• Factors such as trust and confidence, and reputational damage, can all be considered when investigating misconduct, but they cannot be the stand-alone reason for dismissal.

Contact us

Libby Gissing is a solicitor apprentice in our employment law team. If you have any questions about any of the issues covered in this article, or need legal advice, please get in touch with the team today.