Considerations for schools following the outcome of Hewston v Ofsted

The Court of Appeal (“CA”) has recently delivered its judgment in Hewston v Ofsted, which ruled that the Employment Tribunal (“ET”) 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.

It serves as a helpful reminder to schools about the first principles of conduct dismissals.

Reminder of the facts: Hewston v Ofsted

Mr Hewston was employed as an Ofsted inspector for over 12 years and had a clean disciplinary record. During a school inspection, he brushed rainwater from the forehead of a Year 8 pupil and placed his hand on the child’s shoulder. The school reported the incident to Ofsted and, subsequently, to the Local Authority Designated Officer (“LADO”), stating that the conduct was inappropriate and made the pupil feel uncomfortable. Mr Hewston maintained that he acted out of care and sympathy and that the school had been looking for a reason to pick on an inspector and had blown the incident out of proportion as a result.

The LADO advised Ofsted to investigate, with a focus on raising awareness of professional boundaries and training needs. Safeguarding concerns were explicitly ruled out. Despite this, Ofsted summarily dismissed Mr Hewston following investigation, citing a breach of professional boundaries and loss of trust and confidence in his ability to perform his role.

This decision was made despite the lack of any ‘no touch’ policy at Ofsted, and the fact that he had never received training regarding physical contact with pupils.

Mr Hewston issued a claim in the Employment Tribunal for unfair dismissal which was rejected on the basis that Ofsted had conducted a fair and reasonable investigation and had a reasonable belief that Mr Hewston’s actions amounted to gross misconduct. It further ruled that Mr Hewston’s actions had undermined the trust and confidence Ofsted was entitled to have in him, justifying his dismissal. Although the LADO and the ET considered that a lesser sanction may have been appropriate in the circumstances, the ET that dismissal was within the range of reasonable responses.

Employment Appeal Tribunal (“EAT”) decision

Mr Hewston appealed to the EAT, who overturned the ruling and sent the case back to the ET to determine a remedy. The EAT held that the ET had failed to adequately consider the fact that Mr Hewston had not been made aware that a single instance of physical contact could lead to dismissal. Further detail on the EAT’s decision can be found here.

Court of Appeals decision

Ofsted challenged the EAT’s decision in the CA on the basis that the EAT had considered the incorrect question. While the ET had correctly identified the two-fold reasons for dismissal – substantive misconduct and a subsequent lack of accountability – Ofsted felt they were wrong to conclude that if it was not appropriate for an employer to dismiss based on the substantive misconduct, then they could not subsequently dismiss due to a lack of contrition or remorse.

The CA dismissed the appeal, finding that the EAT had correctly questioned whether it was reasonable for the dismissing officer to take the view that the conduct would warrant dismissal for a first-time offence. It was of the view that it’s not normally fair to dismiss an employee for what he could not reasonably have known the employer to regard as serious misconduct.

The CA then considered whether dismissal for the composite reason (i.e. lack of remorse), fell within the range of reasonable responses. The CA observed that Mr Hewston’s attitude did not demonstrate risk of further misconduct and it was unreasonable for an employer to ‘bump-up’ the seriousness of conduct when unable to justify dismissal because an employee failed to show proper contrition or insight. The CA observed that this would place an employee seeking to defend themselves in an impossible position.

It was commonly agreed that Mr Hewston did not pose a safeguarding risk towards children, and at worst his misjudgement may lead to unwelcomed physical contact with a child in the future. The CA assessed this risk to be remote.

Mr Hewston had also confirmed that he would not do anything of this kind again and was willing to undertake training on the matter. Ofsted originally discounted this offer, claiming that Mr Hewston was only saying it because of the trouble caused, not because he felt he had done anything wrong. The CA responded that the motivation should not matter, as long as the result is achieved.

Echoing the recent finding in in Higgs v Farmors School, the CA observed that reliance on loss of trust and confidence cannot justify dismissal for misconduct, unless an employee is guilty of sufficiently serious conduct. They noted that reputational harm may be a relevant factor in reaching a disciplinary decision, but it cannot be a stand-alone basis for such a decision.

The CA also found the dismissal was procedurally unfair because Mr Hewston had not been provided with a copy of the pupil’s statement and the school was said to have put a gloss on the complaint.

Key takeaways for schools

This case is a useful reminder for schools to ensure they have sufficient policies in place relating to the professional behaviours and boundaries of their employees, particularly concerning physical contact with pupils. Those policies should be clearly communicated to staff and regular training should be provided to reinforce expectations.

The ACAS Code of Practice recommends that employers should, in their published disciplinary procedures, give examples of acts which the employer regards as acts of gross misconduct. In schools, this type of information will most likely be included in a Staff Code of Conduct, Behaviour Policy or similar. Although the list doesn’t need to be exhaustive, an ET will consider whether the employee could have reasonably regarded their behaviour to amount to gross misconduct.

When faced with safeguarding concerns such as these, schools should ensure that their reaction is proportionate and that they follow a full and fair procedure with the aim of making a reasonable decision.

Schools should avoid relying on an employee’s lack of remorse as a reason for dismissal without evidence of risk of future misconduct. The weight given to any such evidence will depend on the circumstances of the case. If there are records and documents which form the basis of the allegation brought against an individual, it’s good practice to show these unless there is a good reason not to do so.

Hewston v Ofsted emphasises the need to exercise caution when schools cite loss of trust and confidence and reputational harm to justify a dismissal where the underlying misconduct itself would not be sufficiently serious enough to warrant such an outcome.

For further information, please get in touch with our Education team.