What can Hewston v Ofsted teach us about unfair dismissal and gross misconduct?

The Court of Appeal has ruled that the dismissal of an Ofsted inspector was unfair.  The dismissal concerned a single incident of physical contact with a pupil during a visit.  The Court took the opportunity to re-state some of the principles surrounding unfair dismissal and what could constitute gross misconduct.  These show the high threshold that employers need to meet to make a finding of gross misconduct justifying dismissal.  In this article we consider these principles further.

Hewston v Ofsted

The employee, an Ofsted inspector without any adverse disciplinary record, was dismissed on the grounds of gross misconduct after touching a child’s forehead and shoulder in order to remove rainwater while on school premises during a visit.

The dismissal letter said that the employee had “brought Ofsted into disrepute through this grave error of judgement.”

What is gross misconduct?

The Court said that examples of gross misconduct are generally listed in disciplinary policies, but these do not have to be exhaustive and employees can be dismissed for gross misconduct for actions or omissions which are not listed in the employer’s disciplinary policy.

However, if the act is not described as such in the employer’s disciplinary policy, it is vital to the fairness of any dismissal for the employer to consider whether the employee could reasonably expect the act to be deemed as gross misconduct, having regard to all the circumstances.

In this case, touching of a school pupil was not set out as an example of gross misconduct in the employer’s disciplinary procedure.  Further, the incident raised no safeguarding issues and there had been no relevant training.

So the employee could not have reasonably expected the employer to regard the conduct as gross misconduct taking into account the context.

Employee’s lack of contrition

Ofsted claimed that the inspector had not shown any contrition or apologised for the interaction with the school pupil. The Court said that an employer should not increase the level of seriousness of conduct just because the employee failed to show contrition. Doing so amounted to procedural unfairness to the employee.

The Court found that the employee’s misjudgement in acting in the way he did was not of a kind which implied a real risk of serious misconduct in the future.

Failure to disclose all evidence

The disciplinary procedure was further found to have been unfair because the employee had not been shown the statement from the pupil concerned, the school’s complaint letter to Ofsted or the local authority designated officer’s (LADO) response to the school’s referral.  These were relevant to the case and should have been disclosed.

Key points for employers

1. This case shows the importance of having clear policies in place, supported by training or guidance on professional boundaries. Particularly if the employer wants to treat a transgression as serious misconduct justifying dismissal
2. Employers should not lose sight of substantive fairness. Ask if it is fair in all the circumstances to dismiss?  The employee had 12 years unblemished service, was willing to undergo training and the risk of future inappropriate conduct was remote.  The Court found that dismissal was disproportionate
3. All relevant documents and correspondence should be disclosed to the accused. Employees are entitled to know all the details of the case against them.

If you have any questions about the topic raised in this article, please get in touch.