What happened?
Ofsted dismissed Mr Hewston, one of its school inspectors, for gross misconduct after a single incident in which he brushed rainwater off the head of a Year 8 pupil who had come in soaking from a PE lesson in the rain. He lightly touched the top of his shoulder and asked if he was OK. The pupil felt uncomfortable, prompting the school to report the incident to Ofsted and the local authority designated officer (LADO) for safeguarding purposes. Despite Mr Hewston’s expressed willingness to undergo training and statement that he would not repeat the action, Ofsted dismissed him, citing a grave error of judgment and a lack of remorse. An employment tribunal initially ruled that the dismissal was fair. Mr Hewston appealed and the Employment Appeal Tribunal (EAT) found he had been unfairly dismissed.
What did the Court of Appeal decide?
The Court of Appeal upheld the EAT’s decision that Mr Hewston’s dismissal was unfair. The court found that the dismissal was substantively and procedurally unfair.
Why was it unfair?
Absence of policy and training
There was no ‘no-touch’ policy, nor were inspectors given training on physical contact with students, making it unreasonable for Mr Hewston to anticipate dismissal for his actions.
Nature of the incident
The incident was intended as a friendly act of sympathy and assistance, with no improper motivation or concerns about safeguarding.
Mr Hewston’s attitude
The court found it unreasonable to increase the severity of the misconduct based on Mr Hewston’s lack of remorse, especially since he expressed willingness to undergo training and avoid similar actions in the future. The risk of future misconduct was remote.
Procedural fairness
The disciplinary process was flawed, as Mr Hewston was not shown critical documents during the process, including the pupil’s statement, the school’s complaint letter, and the LADO response, which would have supported his case that the impetus behind the case was the school’s animosity towards Ofsted.
Substantive unfairness
It was unreasonable for Ofsted to dismiss Mr Hewston for an act that did not raise safeguarding issues, especially in the absence of a ‘no touch’ policy or relevant training.
What can we learn?
Policies and training
This case underscores the importance of clear policies for employees, particularly in roles that involve interactions with children or vulnerable individuals. Provide guidance to employees on professional boundaries, particularly regarding physical contact. Establish written standards and provide appropriate training to avoid ambiguity in what constitutes misconduct and gross misconduct.
Information
In disciplinary actions, ensure your employees have access to all relevant information to defend themselves adequately.
Attitude
Dismissal should not hinge on an employee’s failure to show remorse unless there is a demonstrated risk of serious future misconduct arising from such an attitude.
Alternatives
Consider alternatives to dismissal, such as a warning alongside additional training. Avoid claiming that dismissal is the only option without exploring other possibilities.
