Court of Appeal Confirm Ofsted Inspector Was Unfairly Dismissed

Court of Appeal Confirm Ofsted Inspector Was Unfairly Dismissed

The Court of Appeal in Hewston v Ofsted rules that Employment Tribunal was wrong to find that the summary dismissal of an Ofsted inspector for inappropriate physical contact with a child during a school visit was fair.

Background

Hewston was employed by Ofsted as an inspector. During a school inspection, a group of schoolchildren returned from the rain and Hewston brushed rainwater from one child’s hair and placed his hand on the child’s shoulder.

In response to a complaint from the school, which claimed the child felt uncomfortable, the matter was reported to the Local Authority Designated Officer (LADO). Despite this, no safeguarding issues were identified with Hewston’s actions.

Ofsted, however, dismissed Hewston on grounds of gross misconduct, citing a breach of professional boundaries and the resultant loss of trust and confidence in his ability to carry out his role.

Hewston’s dismissal came despite the lack of any ‘no touch’ policy at Ofsted, and the fact that he had never received training regarding what physical contact was appropriate in his role.

Employment Tribunal Findings

The Employment Tribunal found that Ofsted’s investigation was reasonable and concluded that Hewston’s conduct amounted to gross misconduct. The Tribunal held that it was not for them to substitute their views for those of a reasonable employer and maintained that dismissal was within the range of reasonable responses. It further ruled that Hewston’s actions had undermined the trust and confidence Ofsted was entitled to have in him, justifying his dismissal.

EAT Intervention

Hewston appealed to the Employment Appeal Tribunal (EAT), which overturned the employment Tribunal’s ruling, sending the case back to the tribunal to determine remedy.

The EAT held that the Tribunal had failed to give adequate consideration to the fact that Hewston had not been made aware, through a formal policy or training, that a single instance of physical contact could lead to dismissal. The absence of a written ‘no touch’ policy or specific training on the matter meant that it was unreasonable for Ofsted to expect Hewston to have known his actions would be regarded as gross misconduct.

Moreover, Ofsted’s own documents listed examples of misconduct but did not include physical contact.

Court of Appeal Judgment

Ofsted appealed to the Court of Appeal, arguing that the EAT had made an error in stating that Hewston’s failure to show remorse or contrition should not be a factor in assessing the fairness of the dismissal. Ofsted argued it was reasonable to dismiss Hewston on the grounds of both his actions and his attitude during the disciplinary process.

The Court of Appeal disagreed – there was no suggestion of improper motivation behind Hewston’s actions but was instead an act sympathy and assistance.

In the absence of a clear ‘no touch’ policy, it was unreasonable for Ofsted to consider his conduct as warranting dismissal. The Court noted that while there might be cases where an employee’s failure to acknowledge wrongdoing could justify dismissal, this was not one of them. Hewston had expressed a willingness to undergo training and stated he would not repeat the act, making the risk of future misconduct remote.

The Court’s Conclusion

The Court of Appeal upheld the EAT’s decision, stating that it was “plainly correct.” The judgment emphasised that, in the absence of explicit guidance on physical contact, it was unreasonable for Ofsted to regard Hewston’s actions as gross misconduct.

The Court noted that a dismissal for such conduct, particularly in the absence of safeguarding concerns or a ‘no touch’ policy, was outside the range of reasonable responses expected from an employer.

If you are an employer or employee affected by the above issue and want advice or support in connection with the same, or any employment law or HR issues more generally, please do not hesitate to get in contact with us on 01206 239761.