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Case Study
You may recall the case of Hewston v Ofsted and how the absence of a “zero tolerance” policy meant that an incident of touching could not fairly constitute dismissal. We reported this case last year following the findings of the Employment Appeal Tribunal (“the EAT”).
Following an appeal from Ofsted, the case has now been considered by the Court of Appeal who upheld the EAT’s finding and offered confirmation of well-established unfair dismissal principles.
Mr Hewston worked as a school inspector for Ofsted and had a 12-year unblemished record of service. During an onsite inspection in a secondary school, he wiped rainwater from a student’s forehead, tapped him on the shoulder and asked if he was okay. The school complained to Ofsted who then undertook a disciplinary process.
It was common ground that the touching did not amount to a safeguarding concern. Importantly in this case, Ofsted did not have a policy that prohibited physical contact with students, it did not offer any training to its staff on these issues, and it did not list the conduct as something that would justify dismissal. Notwithstanding this, Mr Hewston was summarily dismissed for gross misconduct, which Ofsted referred to as the “resulting loss of trust and confidence” in him. The decision stood despite his internal appeal and so he brought claims of unfair and wrongful dismissal before the Employment Tribunal (“the ET”).
The ET held that his dismissal fell within the band of reasonable responses open to a reasonable employer and that his conduct had undermined the necessary trust and confidence in his ability to perform the role. His claims therefore failed.
Interestingly, the ET commented that whilst the Local Authority and the ET may both have considered that a sanction falling short of dismissal might have been more appropriate and that further training and support should instead have been given, it was not the place of the ET to substitute their views for that of the employer.
Mr Hewston appealed the decision with the support of his Union, who were understandably worried about the implications of this case.
The EAT upheld the appeal and found that his dismissal had in fact been unfair because, in the absence of published guidance or disciplinary rules, Mr Hewston could not have known that such an incident would warrant dismissal. This was especially so for a first-time offence. There was no evidence that this would happen again or that a more serious offence would be committed. There was no suggestion of any improper motivation on his part; instead, what he had done was accepted as a gesture of kindness. Therefore, in the absence of a ‘no touch’ policy, it was not reasonable for Ofsted to take the view that the conduct was of a kind which the inspector should have realised would be regarded as warranting dismissal. To proceed to dismiss him for this fell outside the range of reasonable responses.
It is important here that there was an Ofsted policy setting out examples of misconduct that would be viewed as gross misconduct, but physical touching was not on that list. In addition, there was no other document which specifically addressed the issue of physical touch, no proof of the suggestion of a ‘no touch’ policy, and no training or guidance given.
The EAT also found it relevant that when the matter was reported to the Local Authority Designated Officer (LADO), they had advised that Ofsted should investigate the matter internally ‘with consideration to raising awareness of professional boundaries and any training that may be required in support of this’. This appeared a more proportionate response than dismissal.
Ofsted, unhappy about this finding, then appealed to the Court of Appeal.
Case Study
The Court of Appeal upheld the EAT’s decision – that the dismissal was unfair. In particular, it was found that there had never been any suggestion of improper motivation on Mr Hewston’s part. Furthermore, it is not fair to dismiss an employee for an act which he or she could not reasonably expect to be determined as gross misconduct. The absence of any kind of “no touch” policy, guidance or training and the fact that the incident did not raise any safeguarding issue meant it was unfair to treat the act as one of gross misconduct.
There was an additional question over contrition- whether Mr Hewston had shown sufficient remorse and recognised the seriousness of what he had done. However, the Court of Appeal commented that it is not reasonable for an employer to somehow increase the seriousness of the conduct in question where an employee apparently fails to show adequate contrition. There are cases in which this may be relevant (for example in cases of persistent failure or repeated behaviour), but not here.
There was no likelihood of wrongdoing in the future, particularly where training and guidance had been suggested as an outcome. Mr Hewston had in fact said that he would not do anything of the kind again and that he would be willing to undergo training. For some reason, Ofsted had chosen to disregard this, suggesting he was only saying that as he knew he was in the wrong. This is odd logic, and the Court of Appeal pointed out that the motivation should not matter – as long as the overall result is achieved. They clearly had sympathy with Mr Hewston and called the incident a “momentary and well-meaning lapse of professional judgement” that he was “unlikely to ever repeat”.
We should probably refrain from saying “every day is a school day” given where this situation took place, but there are in fact important lessons to take from this.
In our view, this case emphasises the importance of following a full and fair process when dealing with allegations of misconduct.
Starting with your policies– you need to be clear in identifying what does (and therefore what does not) amount to misconduct and the sanctions that may follow.
You need to set out clear guidance on the type of behaviour that is and is not considered appropriate in order to be able to establish that a dismissal is fair and reasonable in all of the circumstances.
Those policies then need to be clearly and effectively communicated to staff and supported by adequate training.
This is also a lesson in not acting disproportionately when certain types of complaints are raised- this was not a matter in which the safeguarding threshold had been met and should have been viewed accordingly. There was some suggestion that ulterior motives had led the issue to be deemed more serious than it actually was. An objective view should always be taken and time for reflection may be necessary.
Additionally, the otherwise long and unblemished service record should have been taken into account when alternatives to dismissal were being suggested. The lack of training here not only helped undermine the fairness of the dismissal but was also ignored as a solution.
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