In the recent case of Hewston v Ofsted, the Court of Appeal held that it was unfair for Ofsted to dismiss one of its inspectors for touching a pupil on the head, in a way that did not raise any safeguarding issues.
The law
To dismiss an employee fairly (and avoid a successful claim for unfair dismissal) an employer must:
- demonstrate that it had a potentially fair reason for dismissal, such as conduct; and
- show that it acted reasonably in treating that reason as a sufficient reason for dismissal
As part of its assessment, the tribunal will determine whether dismissal was within the “range of reasonable responses” available to the employer in the circumstances.
Facts of the case
Mr Hewston had worked for Ofsted since 2007. In 2019, during an inspection of a school which Ofsted had a strained relationship with, Mr Hewston brushed rainwater off a pupil’s head and placed his hand on the child’s shoulder.
The pupil complained, and the school reported the incident to Ofsted alleging that Mr Hewston had “put the safety of a student at risk.” It also notified the local authority.
Ofsted took disciplinary action. At the disciplinary hearing, Mr Hewston denied that his actions amounted to gross misconduct but said that he would not act in that way again because of the stress it had caused.
Ofsted dismissed Mr Hewston for gross misconduct. In support of this decision, it stated that whilst it did not consider that Mr Hewston had harmed the pupil, he had “brought Ofsted into disrepute through this grave error of judgement.” It also found that Mr Hewston had shown no remorse during the disciplinary process, meaning Ofsted was not satisfied that he would not act in that way again.
Mr Hewston brought a claim for unfair dismissal in the Employment Tribunal.
Employment Tribunal and Employment Appeal Tribunal
The Tribunal dismissed Mr Hewston’s claim, finding that Ofsted had conducted a reasonable investigation and had reasonably concluded that Mr Hewston’s actions had undermined Ofsted’s trust and confidence in him as an employee, and amounted to gross misconduct.
Mr Hewston appealed to the Employment Appeal Tribunal (EAT), which found that his dismissal had, in fact, been unfair. In support of this decision, the EAT highlighted that it would not have been apparent to Mr Hewston that he could have been dismissed for touching a pupil in this way. Further, Ofsted did not have a “no touching” policy, and the incident was not a safeguarding concern.
Court of Appeal
Ofsted appealed to the Court of Appeal, arguing that the EAT had not properly considered that Mr Hewston had been dismissed not just because he touched the pupil, but also due to his failure to demonstrate (during the disciplinary process) that he understood why his conduct was problematic, and his lack of contrition.
The Court of Appeal upheld the EAT’s finding of unfair dismissal. Its central reasons in support of this decision were:
- The EAT had, in fact, considered the fact that the Tribunal had failed to address the question of Mr Hewston’s lack of insight.
- However, the EAT rightly focussed on the fact that Mr Hewston had not been given any guidance or training indicating that touching a pupil would amount to serious misconduct. It was obvious that it would usually not be fair to dismiss someone for an act that they would not have understood to be misconduct.
- The touching of the pupil was intended as a show of support, and there was no improper motive or any safeguarding issues.
Lessons for employers
This case illustrates the need for employers (and especially those who work with vulnerable people such as children) to clearly spell out the sort of conduct that will be treated as serious or gross misconduct, both through written policies and training. Employers working with children or vulnerable people also need to be mindful that, if an employee’s conduct has upset someone, but has nonetheless not caused any actual harm, or raised any safeguarding issues, issuing a warning may be a more appropriate sanction than dismissal.