Ofsted Inspector unfairly dismissed for touching pupil

Case Study

The case

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

The outcome

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:

The dismissal was procedurally unfair because three of the key documents (the text of the school’s complaint, the text of the child’s statement, and an email from the LADO) on which the employer relied were not provided to the employee before the disciplinary hearing.
There was no “forewarning”, in that Mr Hewston had not received training on what constituted “inappropriate touching”, and had not been told that he must not make any physical contact with students. Furthermore, there was no disciplinary policy in place that defined what amounted to inappropriate conduct, nor what the consequences would be.
The employee’s long and unblemished service had not been considered when dismissing him.

Comment

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.

Ofsted Inspector unfairly dismissed for touching pupil

The case

The outcome

Comment

Other areas of interest

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