<p data-pm-slice="1 1 []">Mr Hewston was employed as an Ofsted inspector. During a school inspection, he brushed water from the head of a 12 year old boy as he came in from a rainstorm and touched his shoulder in a gesture that was meant to be helpful and sympathetic. The school subsequently submitted complaints to Ofsted and the local authority safeguarding officer, alleging that this physical contact was inappropriate and had made the child feel uncomfortable. Ofsted initiated disciplinary proceedings, resulting in Mr Hewston’s dismissal for gross misconduct. It was accepted that he was not a risk to children and that there were no safeguarding concerns. Mr Hewston was dismissed for bringing Ofsted into disrepute by his grave error of judgment and because, having shown no remorse, he had failed to convince Ofsted that he would not do something similar again. He then brought a claim of unfair dismissal in the Employment Tribunal.</p>
The Tribunal dismissed Mr Hewston’s claim, ruling that the investigation and disciplinary procedure had been fair and reasonable and that Ofsted had a reasonable belief that his actions undermined trust and confidence in his abilities and amounted to gross misconduct. While acknowledging that a sanction falling short of dismissal might have been appropriate, the Tribunal was not permitted to substitute its own views for those of a reasonable employer.

Mr Hewston appealed to the Employment Appeal Tribunal (EAT). Overturning the Tribunal’s ruling, the EAT substituted a finding of unfair dismissal. The EAT held that it could not have been obvious to Mr Hewston that he could be dismissed for touching a pupil once in this manner. This was not made clear in any policies, and he had not undergone any relevant training. Ofsted had also accepted that there were no safeguarding issues. Mr Hewston’s dismissal was also procedurally unfair because he had not been provided with key documentation during the disciplinary process, including the pupil’s statement, the school’s letter of complaint, and the local authority’s response.

Ofsted’s appeal has now been unanimously dismissed by the Court of Appeal, which agreed with the EAT’s reasoning. The Court of Appeal confirmed that it will not normally be fair to dismiss an employee for an act that they could not reasonably be expected to know would be regarded as serious misconduct. The Court also rejected Ofsted’s argument that Mr Hewston’s lack of remorse was relevant. It will not normally be reasonable for an employer to “bump up” the seriousness of misconduct just because the employee has failed to show due contrition or insight during the disciplinary process. In any event, Mr Hewston was willing to attend training and had agreed that he would not repeat his actions.

This case illustrates the importance of ensuring that disciplinary policies and procedures set out as precisely as possible any behaviours that will be regarded as unacceptable. As the Court of Appeal noted in this case, if an act is not listed as an example of gross misconduct in a disciplinary policy, an employer must consider whether it is reasonable to expect an employee to know that their misconduct will be regarded as serious. It is advisable to provide regular training for all staff so that they understand what behavioural standards are expected of them. This case also highlights that a dismissal is likely to be procedurally unfair where the employee has not been provided with all relevant documents and evidence during the investigation and disciplinary process.