Hewston v Ofsted

Factual and Procedural Background

The Appellant, Company A, is the principal independent regulator and inspectorate of schools. The Claimant was employed by Company A as a Social Care Regulatory Inspector from 2007. On 8 October 2019, during a school inspection at a school ("the School"), the Claimant brushed water off and touched the shoulder of a boy aged twelve or thirteen who had been caught in a rainstorm. This incident was reported to Company A as inappropriate touching. Disciplinary proceedings were initiated, and on 21 November 2019 the Claimant was summarily dismissed for gross misconduct. There was never any suggestion of improper motivation; the act was described as friendly sympathy and assistance.

The Claimant brought proceedings in the Employment Tribunal ("the ET") for unfair and wrongful dismissal. After a five-day hearing, the ET dismissed both claims on 26 November 2021, with written reasons provided on 3 March 2022. The Claimant appealed to the Employment Appeal Tribunal ("the EAT"), which allowed the appeal on 4 August 2023, finding unfair dismissal and remitting remedy determination to the ET, and quashing the wrongful dismissal finding, remitting liability and damages for determination.

Company A was granted permission to appeal the unfair dismissal decision of the EAT. The appeal was heard on 17 October 2024, with counsel representing both sides. The appeal was dismissed, with reasons provided in this opinion.

Legal Issues Presented

1. Whether the dismissal of the Claimant by Company A was substantively fair, particularly in light of the absence of a clear disciplinary rule or policy prohibiting physical contact with children.
2. Whether the dismissal was procedurally fair, specifically whether the Claimant was provided with sufficient disclosure of evidence relied upon in the disciplinary process.
3. The relevance of the Claimant's attitude and insight towards his conduct during the disciplinary process in assessing the fairness of dismissal.
4. Whether the Employment Appeal Tribunal correctly applied the law in overturning the Employment Tribunal's decision.

Arguments of the Parties

Appellant's Arguments

• The dismissal was justified by the Claimant's conduct of touching the pupil and his attitude during the disciplinary process, which demonstrated a lack of insight and professionalism.
• The absence of a specific "no touch" policy did not preclude the reasonableness of dismissal, as the Claimant, being a senior and experienced inspector, should have appreciated the gravity of his conduct.
• The Employment Appeal Tribunal erred in focusing solely on the absence of explicit disciplinary rules and failed to give adequate weight to the Claimant's attitude.
• The procedural fairness was maintained as the Claimant was aware of the substance of the allegations and the factual basis of the complaint.

Respondent's Arguments

• The Claimant had no clear notice that the touching conduct could lead to dismissal, as Company A had no "no touch" policy or specific guidance on physical contact.
• The Claimant's conduct was a momentary misjudgement and did not amount to gross misconduct warranting dismissal.
• The Claimant's attitude during disciplinary proceedings, including his lack of contrition, was not sufficient to justify dismissal absent the substantive conduct being serious enough on its own.
• Procedurally, the Claimant was not provided with key documents (the pupil's statement, the School's complaint, and the LADO report) prior to dismissal, denying him a fair opportunity to respond.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Foley v The Post Office [2000] ICR 1283	Clarification of the "range of reasonable responses" test in unfair dismissal cases.	Endorsed the "range of reasonable responses" but emphasised tribunals must independently assess reasonableness without undue deference.
West v Percy Community Centre UKEAT/0101/15	Consideration of disciplinary rules and misconduct in safeguarding contexts.	Referenced regarding the need for scrutiny in disciplinary cases affecting professional roles involving children.
McFarlane v Relate Avon Ltd [2009] UKEAT 0106/09	Critique of the use of "loss of trust and confidence" terminology in misconduct dismissal cases.	Advised focusing on specific conduct rather than general loss of trust and confidence language.
A v B [2010] UKEAT 0206/09; Leach v Office of Communications [2012] EWCA Civ 959	Endorsement of the approach to "loss of trust and confidence" and dismissal fairness.	Approved the caution against overuse of "trust and confidence" as a proxy for statutory tests.
Tayeh v Barchester Healthcare Ltd [2013] EWCA Civ 29	Limits on appellate interference with Employment Tribunal findings on fairness.	Guided the EAT’s approach to reviewing the ET’s reasoning on the fairness of dismissal.
Paul v East Surrey Health Authority [1995] IRLR 305	Consideration of misconduct and subsequent attitude in dismissal decisions.	Referenced to distinguish cases where misconduct justified dismissal and attitude influenced sanction severity.
Hodgson v Menzies Aviation (UK) Ltd [2018] UKEAT 10165/18	Role of employee attitude in dismissal for misconduct.	Used to illustrate different issues from the present case where substantive misconduct was not established.
Higgs v Farmor's School [2025] EWCA Civ 109	Observations on relevance of lack of insight to dismissal justification.	Supported the view that lack of insight alone is insufficient to justify dismissal absent serious misconduct.
Jafri v Lincoln College [2014] EWCA Civ 449	Principles governing appellate intervention in unfair dismissal findings.	Referenced in discussion on whether the EAT was correct to make its own finding of unfair dismissal.

Court's Reasoning and Analysis

The court examined the substantive fairness of the dismissal by applying the two-stage test under section 98 of the Employment Rights Act 1996: first, whether the dismissal reason related to conduct, and second, whether the employer acted reasonably in treating that conduct as sufficient for dismissal.

The court noted that Company A had no explicit "no touch" policy or clear guidance on physical contact, and the Claimant had no reason to believe that touching a pupil in the manner described would warrant dismissal. The incident was not found to raise safeguarding concerns, and the disciplinary charges lacked specificity about why the touching was wrong beyond general references to professionalism and Company A's values.

The court acknowledged the importance of the Claimant's attitude during disciplinary proceedings but agreed with the EAT that if the substantive conduct itself would not justify dismissal, then the absence of remorse or insight could not render dismissal fair. The Claimant's conduct was a misjudgement or insensitivity, but not of such gravity as to make dismissal reasonable.

Procedurally, the court found that Company A failed to provide the Claimant with key documents (the pupil's statement, the School's complaint, and the LADO report) before dismissal, depriving him of a fair opportunity to respond and challenge the evidence. This procedural unfairness compounded the substantive unfairness.

The court also criticised the use of vague and uninformative language in the charges and dismissal letter, which failed to clearly identify the nature of the misconduct or the reasons for dismissal. The focus on the child's reaction, which was not part of the charge and was withheld from the Claimant initially, was deemed unfair.

Overall, the court agreed with the EAT that the dismissal was substantively and procedurally unfair, and that the ET had erred in law by not addressing these issues properly.

Holding and Implications

DISMISSED

The court dismissed the appeal by Company A, upholding the Employment Appeal Tribunal's decision that the Claimant was unfairly dismissed. The dismissal was found to be substantively unfair due to the lack of clear disciplinary rules or guidance and procedural unfair because of insufficient disclosure of evidence to the Claimant. The decision requires the Employment Tribunal to determine the appropriate remedy for unfair dismissal. No new precedent was set beyond affirming established principles regarding fairness in dismissal where disciplinary rules are unclear and procedural fairness is compromised. The direct effect is that the Claimant's claim for unfair dismissal will proceed to remedy determination, and the wrongful dismissal claim will be reconsidered by a differently constituted tribunal.