

A recent judgment by the Employment Appeal Tribunal (“EAT”) has emphasised the importance of following a full and fair process for every misconduct allegation. It also highlights the need for clear guidance on the type of behaviour that is and is not considered appropriate in order to show that a dismissal was fair and reasonable in all of the circumstances.
Mr Hewston was employed by Ofsted as an inspector who, during the course of a school inspection, brushed water off the head a child who had come in from the rain. The student had reported feeling uncomfortable about the incident, and a complaint about Mr Hewston’s conduct was subsequently reported by the school to Ofsted and the Local Authority Designated Officer (“LADO”). Mr Hewston denied that he had acted unprofessionally and said that the gesture was caring and had been blown out of all proportion by the school.
Following an investigation and disciplinary process, Mr Hewston was dismissed for gross misconduct, on the basis that, whilst it was not considered a safeguarding issue, his behaviour was a serious error of judgment, breached professional standards and had destroyed Ofsted’s trust and confidence in him.
Mr Hewston brought a claim for unfair dismissal against Ofsted, but this was rejected by an Employment Tribunal (“ET”), who found that the dismissal was fair. Mr Hewston appealed to the EAT. He complained that the process followed by Ofsted was not in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures and that there was no policy in place that made it clear that a single act of touching of this nature could result in dismissal.
Specifically, he complained that, despite undertaking an investigation and disciplinary process, Ofsted did not provide Mr Hewston with a copy of the complaint raised by the school, the student’s statement, nor the report produced by the LADO prior to the disciplinary hearing. A copy of the school’s complaint was later provided, but this was not given to Mr Hewston until the appeal stage. As such, the EAT found that the dismissal was procedurally unfair on the basis that three of the key documents that Ofsted relied upon in its decision to dismiss Mr Hewston had not been disclosed to him.
The EAT also considered the issue of whether Mr Hewston needed to be forewarned that touching a pupil in such a manner was sufficiently serious to warrant a dismissal for gross misconduct. Ofsted had no written policy on touching, and did not operate a “no touch” policy. The EAT acknowledged that, clearly, there are certain instances of touching which would amount to gross misconduct but Mr Hewston’s conduct was not one of those instances. Mr Hewston argued that there was not sufficient training and guidance as to what would be inappropriate touching. The EAT concluded, therefore, that Mr Hewston was not given express, fair notice that this type of conduct would result in his dismissal. As such, the decision to dismiss was not fair and reasonable in all of the circumstances, especially taking into account Mr Hewston’s long and unblemished record of service.
Commentary
This case highlights the importance for schools to have clear policies in place to confirm the standards of behaviour which are considered to be appropriate and not appropriate. Policies need to be clearly and effectively communicated to staff and it is important that staff also receive sufficient training. In schools this type of information will most likely be included in a Staff Code of Conduct, or similar, and should also confirm the type of behaviour that might amount to gross misconduct. In their judgment, the EAT acknowledged that it will not be possible to capture all behaviours that will amount to gross misconduct. Instead, examples of behaviour that would be of a serious enough nature as to warrant a dismissal should be included.
Similarly, the case also confirms that it will be important for schools to ensure that they do not react disproportionately when safeguarding complaints are raised. In order for a dismissal to be fair it will still be necessary to follow a full and fair procedure and ensure that the decision is reasonable in all of the circumstances.