Introduction

The judgment in Hewston v Ofsted ([2025] EWCA Civ 250) addresses a complex dispute arising from the dismissal of a Social Care Regulatory Inspector employed by OFSTED. The case centers on an incident during a school inspection in which the Claimant, attempting an act of “care” by brushing rainwater off a pupil’s head and shoulder, was summarily dismissed for gross misconduct. While there was no suggestion of any improper sexual motivation, the incident was construed as an uninvited physical contact that breached the professional boundaries expected of an OFSTED inspector.

At its core, the dispute examines whether the Claimant should have reasonably foreseen that his conduct could result in dismissal under existing disciplinary frameworks, particularly when no clear “no-touch” policy or explicit guidance was available. The background of the case is intertwined with issues of safeguarding standards, the appropriate range of disciplinary responses, and the statutory duty to provide fair notice to employees regarding conduct that may lead to dismissal.

The parties involved are OFSTED (the Appellant), representing the regulatory body in charge of education and children’s services, and the Claimant, an experienced inspector with a long employment history and an unblemished record on safeguarding prior to the incident.

Summary of the Judgment

The Court of Appeal delivered a detailed and multi-faceted judgment reviewing the decisions of the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT). Central to the judgment was the finding that the dismissal of the Claimant was substantively unfair. Key findings include:

• The disciplinary process was based primarily on the Claimant’s uninvited physical contact with a pupil—a conduct which, in the absence of a dedicated “no-touch” policy or unambiguous guidance, did not reasonably justify dismissal.
• The panel held that the Claimant was not forewarned that such conduct would attract a sanction as severe as dismissal, and that his “friendly” act, despite being unapproved and raising eyebrows, did not reach the threshold of gross misconduct meriting a complete loss of trust.
• The lack of explicit disciplinary guidelines regarding physical contact meant that the Claimant could not have reasonably expected that his conduct would result in dismissal, a finding that formed the basis for the substantive unfair dismissal decision.
• The judgment also noted procedural irregularities, such as the failure to share key evidentiary documents (e.g., the pupil’s complaint) with the Claimant, further undermining the fairness of the dismissal procedure.

Ultimately, while the disciplinary process acknowledged certain shortcomings in professional judgment by the Claimant, it was held that dismissal was not a proportionate response given the absence of clear, prior warning and guidance.

Analysis

1. Precedents Cited

The judgment makes extensive reference to established case law and statutory provisions. In particular:

• Section 94 and Section 98 of the Employment Rights Act 1996: These sections were used to frame the two-stage test in determining whether a dismissal is fair – firstly, the identification of conduct within the statutory ambit, and secondly, whether the employer acted reasonably in applying the sanction.
• The “Range of Reasonable Responses” Approach: Referencing Foley v The Post Office [2000] ICR 1283, the Court underscored that a dismissal may be deemed fair within a broad band of acceptable responses even if a lesser sanction might have sufficed. This principle, however, does not extend to cases where the employee was not adequately forewarned.
• Safeguarding Cases: Prior EAT cases such as W Brooks & Son v Skinner, Lock v Cardiff Railway Company Ltd, and West v Percy Community Centre were addressed to illustrate similar applications of statutory fairness. These cases were invoked to contrast situations where a “no-touch” policy or explicit safeguarding guidance might justify a harsher response.

The Court’s reliance on these precedents underlines its position that disciplinary actions must be context-sensitive and that clear notice of potential sanctions is a prerequisite for dismissal.

2. Legal Reasoning

The Court’s reasoning can be distilled into several core principles:

• Notice and Clarity in Disciplinary Guidance: The judgment firmly holds that an employee should not be dismissed for conduct unless it was clear from the outset that such conduct would be treated as gross misconduct. In this case, the absence of a “no-touch” policy and explicit warnings regarding the consequences of physical contact undermined the fairness of the dismissal.
• Assessing Conduct in Context: While the act of touching was uninvited and, on its face, unprofessional, the established fact that there was no intentional harm or safeguarding concern shifted the analysis. The Court considered whether the behavior, when viewed in the light a reasonable person would judge it, warranted the fundamental loss of trust required for dismissal.
• Importance of the Employee’s Attitude: Although the Claimant’s subsequent attitude and failure to fully acknowledge any wrongdoing were noted as compounding factors, the Court emphasized that these alone could not convert a relatively minor lapse into automatically gross misconduct if there had been no clear warning that dismissal was a potential consequence.
• Procedural Fairness: The failure to provide the Claimant with all relevant evidence, notably the pupil’s complaint, further compromised the fairness of the disciplinary process. This oversight had the effect of depriving him of a full opportunity to rebut allegations or address discrepancies between different accounts.

Ultimately, the legal reasoning reinforces the idea that disciplinary decisions, especially in sensitive roles such as those involving contact with children, require a balancing act between enforcing standards and ensuring that employees are given clear, fair, and predictable notice about what constitutes unacceptable conduct.

3. Impact on Future Cases and the Legal Landscape

The decision in Hewston v Ofsted sets an important precedent by highlighting the employer’s duty to provide explicit and unambiguous disciplinary guidance, particularly in relation to physical contact in sensitive settings. Its effects include:

• Enhanced Clarity of Employee Expectations: Employers, especially in regulated sectors like education and child safeguarding, may need to revisit their disciplinary procedures to ensure that any potential misconduct—especially those related to physical contact—is clearly defined and supported by explicit policies.
• Balancing Disciplinary Measures and Fair Notice: Future tribunals will be more cautious in imposing severe sanctions unless an employee has been properly forewarned that similar conduct would justify dismissal. This aligns with the statutory principle underpinning the “range of reasonable responses.”
• Influence on Training Protocols: The judgment underscores the need for comprehensive training and clear communication regarding professional boundaries. This will likely prompt greater attention to the development and dissemination of specific protocols addressing physical contact with children.

4. Complex Concepts Simplified

Several complex legal concepts are at play in this judgment. Here are some simplified explanations:

• Range of Reasonable Responses: This concept means that while different employers might choose different levels of punishment for similar misconduct, any decision must fall within a spectrum that a reasonable employer could adopt after considering all facts. It is not enough for a tribunal simply to say a lesser sanction was available – the decision must be well supported.
• Substantive vs. Procedural Unfairness: Substantive unfairness concerns the actual reasons for dismissal (in this case, the fact that the Claimant was not forewarned that his conduct could lead to dismissal), whereas procedural unfairness relates to the way in which the dismissal process was conducted (such as the failure to disclose important evidence).
• Trust and Confidence: Although often mentioned as a rationale for dismissals, the loss of “trust and confidence” is not a catch-all justification unless the underlying misconduct is clearly severe. In this case, the Court stressed that evidencing inherent misconduct is necessary before loss of trust can legally justify dismissal.

Conclusion

The Court of Appeal’s decision in Hewston v Ofsted is significant because it clarifies that in the absence of explicit disciplinary policies – in this instance, a “no-touch” rule – an employee cannot reasonably be expected to understand that an act done in a spirit of care might result in dismissal for gross misconduct. The judgment meticulously differentiates between a momentary lapse in judgment and conduct that reaches the threshold of serious misconduct warranting exclusion from an employee’s professional role.

The takeaway for employers is clear: disciplinary frameworks must be precise and unambiguous, providing clear notice about what types of behavior will attract severe sanctions. For employees, it underlines the importance of ensuring that potential areas of dispute or ambiguity are addressed through proper training and policy dissemination. In the broader legal context, this judgment reinforces the statutory requirement of fairness and the necessity of providing employees with notice, thus setting an influential precedent in employment law.

Overall, the decision reflects a balanced approach—upholding the right of employers to enforce standards while protecting employees from disproportionate sanctions based on unclear or inconsistent disciplinary practices.