Court of Appeal rules training repayment clause unenforceable
The Court of Appeal has provided important guidance on the enforceability of training repayment clauses in employment contracts.
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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.
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