Key Legal Framework: Unfair dismissal under the Employment Rights Act 1996 (ERA 1996)
Employees with at least two years continuous service[1] have the right not to be unfairly dismissed. There are five potentially fair reasons for dismissal under ERA 1996: capability, conduct, redundancy, illegality or some other substantial reason (SOSR). In addition, for a dismissal to be fair, the employer must show not only that a potentially fair reason applied, but that the dismissal was fair in all the circumstances of the case, which will almost always require that a fair procedure was followed. When considering a conduct dismissal, the tribunal will need to decide whether dismissal fell within the “range of reasonable responses” open to a reasonable employer.
Case Overview
Mr Hewston had over 12 years’ service with Ofsted and held a clean disciplinary record. During one school inspection visit, Mr Hewston brushed rainwater off the forehead of a Year 8 child who had come in from a PE lesson in the rain, and placed his hand on the child’s shoulder in a gesture intended as sympathy and assistance. The school complained to Ofsted that the conduct was inappropriate and made the child feel uncomfortable. Mr Hewston maintained throughout the disciplinary process that the school had been looking for a reason to pick on an inspector, given its animosity towards Ofsted, and that it had blown the incident out of proportion as a result.
The Local Authority Designated Officer (LADO) advised Ofsted to investigate with a focus on raising awareness of professional boundaries and training needs. Safeguarding concerns were explicitly ruled out.
Ofsted summarily dismissed Mr Hewston for misconduct and loss of trust and confidence, despite the lack of a ‘no touch’ policy and no prior guidance or training on acceptable physical contact.
The Court’s Findings: Dismissal was Unfair
The employment tribunal at first instance found that Mr Hewston’s dismissal had been fair, reasoning that his conduct undermined trust and confidence. It deemed Ofsted’s investigation reasonable and rejected the claim for unfair dismissal.
Mr Hewston appealed to the Employment Appeal Tribunal (EAT). The EAT held that Ofsted failed to forewarn Mr Hewston about the consequences of such conduct. The lack of a ‘no touch’ policy or training on physical contact meant dismissal was unreasonable. The EAT substituted a finding of unfair dismissal.
Ofsted appealed to the Court of Appeal. The Court dismissed the appeal and agreed with the EAT’s conclusion. It emphasised that Mr Hewston’s actions were not of a kind that he should reasonably have anticipated as warranting dismissal.
Key takeaways
- Forewarning: The case highlights the importance of clear policies, training, and guidance for employees on professional boundaries, particularly concerning physical contact.
- Composite Reason for Dismissal: The Court rejected Ofsted’s argument that H’s lack of remorse during disciplinary proceedings compounded his misconduct to justify dismissal. It held that dismissal cannot reasonably hinge on an employee’s failure to show remorse unless there is a demonstrated risk of serious future misconduct arising from such an attitude.
- Proportionality of Response: The Court noted that the risk of future inappropriate conduct by H was remote, given his expressed willingness to undergo training. It concluded that dismissal was disproportionate.
This case underscores the need for employers in the education sector to:
- Establish clear policies to define acceptable boundaries.
- Provide regular training and guidance to staff on safeguarding and professional conduct.
- Ensure proportionality and fairness in disciplinary decisions, especially where conduct does not raise safeguarding concerns or breach explicit policies.
- Avoid relying on an employee’s lack of remorse as a reason for dismissal without evidence of risk of future misconduct.
For advice on any of the issues discussed in these case updates, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690
[1] The continuous service requirement for protection from unfair dismissal is subject to reform under the Employment Rights Bill and is expected to be abolished, with unfair dismissal becoming a day one right for all employees (subject to statutory probation periods)