Unfair dismissal: The risk of failing to set clear expectations and withholding evidence

22nd September 2023

The Acas Code of Practice on Disciplinary and Grievance Procedures (the “Code”) provides practical guidance to employers on how to conduct disciplinary proceedings fairly. The Code emphasises that an employer’s rules and procedures should be set down in writing, be specific and clear and include examples of what the employer may consider to be gross misconduct.

In the recent case Hewston v Ofsted, the Employment Appeal Tribunal (EAT) held that an employee was unfairly dismissed as the employer had failed to comply with two key principles of the Code, as follows:

  • An employer should set out in a written code of conduct or disciplinary policy the behaviour expectations of its staff including any examples of gross misconduct which could also or alternatively be explained to staff during training
  • In advance of a disciplinary hearing, the employee should normally be given copies of any written evidence which may include any witness statements.

The case

Mr Hewston was employed as an inspector by Ofsted. Following one inspection, a school made numerous complaints to Ofsted, one of which was that Mr Hewston was alleged to have brushed rainwater off the hair and forehead of a student and put his hand on his shoulder.

This allegation was reported to the Local Authority Designated Officer (LADO) who decided that no safeguarding concerns arose from the incident and that the appropriate response was for Ofsted to investigate the matter internally.

Following this, a disciplinary process was triggered based on the allegation that Mr Hewston, without consent or invitation, touched a child on the head and shoulder. It was alleged that these actions were inappropriate, contrary to Ofsted’s values, had damaged Ofsted’s reputation and breached its trust and confidence in his role as an inspector.

When invited to a disciplinary hearing, Ofsted did not share with Mr Hewston relevant communications from the LADO, the statement of the student involved, or any further evidence relied upon.

Mr Hewston noted that Ofsted appeared to be advocating a “no touch” policy and that this went against the content of lectures given at previous conferences. Ofsted denied that it had a “no touch” policy. It had provided no training to staff on this issue and there were no disciplinary rules in place noting that inappropriate physical contact may be considered misconduct.

Mr Hewston was dismissed for gross misconduct and subsequently pursued a claim of unfair and wrongful dismissal.

The Employment Tribunal (“ET”) initially dismissed Mr Hewston’s claim, however he successfully appealed to the EAT.

The EAT held that the ET had failed to adequately consider the fact that Mr Hewston had not been forewarned by Ofsted, either by written policy, training or otherwise that a single incident of physical contact of this sort, which was not found to give rise to any safeguarding issue, would result in dismissal. On top of this, Ofsted denied the fact it had a “no touch” policy and did not seek to rely on any written policy or training.

An employer is not obliged to identify every type of conduct which it may regard as gross misconduct. It is, however, unlikely to be fair to dismiss an employee for conduct which he did not appreciate and could not reasonably have been expected to appreciate might attract the sanction of dismissal for a single occurrence. The EAT found that the conduct in this case was not so obviously gross misconduct that it did not need to be made clear to staff in writing that a single instance could lead to dismissal.

Additionally, the ET failed to consider Ofsted’s failure to give Mr Hewston copies of the documents seen and relied upon by the person chairing the disciplinary hearing. The Code notes that copies of any written evidence should normally be shared with the employee and the EAT has previously strongly emphasised the importance of this.

The EAT found that Mr Hewston’s dismissal was unfair.

Impact on schools

The case emphasises the importance of having clear written rules and procedures relating to staff conduct that include detail as to the types of conduct that may be considered gross misconduct. Within a school context, clear guidance and/or training should be provided regarding appropriate physical contact and when such contact may be considered misconduct. This was lacking in the case of Ofsted.

It is also important to note that a fundamental principle of fairness in the context of disciplinary proceedings is that the employee knows the case against them. Witness statements and other documents that will be relied upon by an employer should normally be made available to the employee before the disciplinary hearing. Where this is not possible due to the sensitivity of the document in question, or as a result of other legal restrictions, schools should seek legal advice.

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