The Employment Appeal Tribunal has found several procedural errors in the dismissal of the Ofsted employee.
31 October 2023
Case Study
Mr Hewston was a school inspector, with a 12-year unblemished service record when he was accused by a teacher of inappropriate contact with a child.
After students had entered the classroom after heavy rainfall, he briefly touched a student’s forehead to brush away water and put his hand on their shoulder. A complaint was made by the teacher, who described the student as looking uncomfortable. The incident and complaint were reported, as a matter of routine, to the Local Authority Designated Officer (LADO). The LADO is responsible for managing allegations against adults who work with children. This involves working with police, children’s social care, employers and other involved professionals.
After considering the referral, the LADO accepted that no harm was intended and that no safeguarding issue had arisen. Instead, it recommended that Ofsted conduct an internal investigation of the incident, with particular attention to raising awareness of professional boundaries and providing any training that may have been required.
After the internal investigation, Ofsted found Mr Hewston’s actions to be inappropriate and contrary to their values, also stating that they had damaged Ofsted’s reputation. As such, Mr Hewston was invited to a disciplinary hearing, after which he was summarily dismissed for gross misconduct.
Case Study
Mr Hewston brought claims of unfair dismissal and wrongful dismissal but both claims were dismissed by an Employment Tribunal. However, Mr Hewston did successfully appeal to the EAT, which overturned the decision on the following grounds:
This case demonstrates the importance of following a robust disciplinary procedure, particularly where dismissal is contemplated. You must ensure that your policy sets out what behaviour is unacceptable and, further, you must effectively communicate this to staff. If you operate zero tolerance on certain issues you must make this clear and provide training and clarification as to the consequences. You cannot retrospectively enforce standards which either do not exist or have not been communicated. Even where your policy is clear, always remember that an employee must be made aware of the allegations that they face and what the consequences could be. Finally, a clean disciplinary record (or otherwise) will be relevant in determining disciplinary sanction.
Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.
Related Services
The Court of Appeal has provided important guidance on the enforceability of training repayment clauses in employment contracts.
Read More
The Employment Appeal Tribunal has clarified when employers may be deemed to have knowledge of an employee's disability.
Read More
Download our probationary period resource pack to help prepare for the Employment Rights Act changes from January 2027.
Read More
An employer's failure to involve an employee in an investigation led to findings of disability discrimination and compensation.
Read More
The EAT highlights the limits of protected conversations and the risks employers face when discussions are handled incorrectly.
Read More
Employer ordered to pay over £264,000 after a reference referring to an ongoing dispute was found to amount to victimisation.
Read More
Download expert guidance on UK trade union reforms and prepare your organisation for Employment Rights Act changes.
Read More
EAT confirms endometriosis can be a disability and examines reasonable adjustments, dismissal risks and performance management issues for employers.
Read More
EAT confirms withdrawing a conditional job offer can breach contract with employers understanding when an offer is binding and notice applies.
Read More
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
Read More
EAT confirms dismissal must be based on the employer’s actual reason, not a substitute. Incorrect reasoning can make dismissal unfair.
Read More
EAT finds dismissal unfair in Milrine v DHL (2026). Key lessons for employers on appeal processes and reducing tribunal risk.
Read More