In this case, the Court of Appeal held that an employment tribunal was wrong to find that a school inspector’s summary dismissal for touching a pupil's shoulder and brushing rainwater off his forehead during a school visit was fair.
The facts
During a school inspection, the Claimant, Mr Hewston, touched the shoulder and brushed rainwater off the forehead of a pupil aged twelve or thirteen who had been caught in a rainstorm. The Court found that this was intended as a friendly act of sympathy and assistance and that there had never been any suggestion of any improper motivation on the part of Mr Hewston. His actions were not a safeguarding matter.
The incident was reported to Ofsted by the school as a case of inappropriate touching. Disciplinary proceedings were instituted, and Mr Hewston was summarily dismissed for gross misconduct. Both the conduct of touching the child and Mr Hewston's attitude to the incident were relied on by Ofsted in deciding to summarily dismiss him. In particular, initiating contact with a pupil (when not invited or expected) was found to be a failure to exercise good inspection judgement and a grave error of judgement. By contrast, Mr Hewston argued his conduct was professional because it was caring. Ofsted also relied on the fact that, although Mr Hewston said he would not do it again because of all the stress it had caused, and he was prepared to undergo training, he did not accept the interaction with the child was wrong. In coming to the decision to summarily dismiss Mr Hewston, Ofsted took they view that because he had not shown remorse they could have no trust and confidence that he would not repeat the conduct.
Mr Hewston brought unsuccessful claims of unfair and wrongful dismissal in the employment tribunal. Mr Hewston successfully appealed to the EAT who found he had been unfairly dismissed, primarily because it found that Mr Hewston did not know that conduct of this kind was something he could be dismissed for.
Ofsted appealed unsuccessfully to the Court of Appeal, who agreed with the EAT that Mr Hewston's dismissal had been unfair. Key to the EAT and Court of Appeal's decisions were that:
- There were no safeguarding issues at play.
- Ofsted does not have, and has never had, a "no touch" policy, disciplinary rule nor had it informed employees of such a rule during training.
- Given the lack of policy, Mr Hewston could not have known that he might be doing something so seriously wrong that he could be dismissed for it, and the tribunal had not addressed this point.
- The disciplinary charge identified various provisions of the Civil Service Code and the Ofsted Inspector Code of Conduct. These refer to the need to act professionally, but there was a lack of specifics regarding what Mr Hewston had done wrong.
- The EAT had addressed the relevance of Mr Hewston's attitude correctly. Where the misconduct in itself does not justify dismissal, the person's attitude to it cannot usually be used to "bump up" the seriousness in order to justify a gross misconduct dismissal. While noting that tribunals should not be too prescriptive on the distinction between the seriousness of the substantive conduct and an employee's subsequent attitude, in this case Mr Hewston's misjudgement did not imply a real risk of serious misconduct in the future: he had said he would not do anything of the kind again.
- The range of reasonable responses does not require a tribunal to defer to the judgement of the employer: the Court felt it was clear the employment tribunal judge regarded the proper response to be a sanction short of dismissal, coupled with appropriate training.
- Mr Hewston had worked for Ofsted for 12 years with an unblemished disciplinary record.
What does this mean for employers?
This case makes it clear that employers must clearly identify to their employees behaviours which may constitute gross misconduct either in a policy and/or during training. Reliance on undefined professional standards during a disciplinary process may not be sufficient: employers should tell the employee the specifics of the misconduct they are being accused of.
The case also gives useful guidance on the role of insight in cases of misconduct. In dismissal cases the employee's attitude to the conduct cannot usually be used to justify dismissal where the conduct itself is not serious enough to justify dismissal. The warning from this case is that employers need to avoid concluding, in the absence of a persistent failure by an employee to accept they have done something wrong, that because an employee has not agreed they have done something wrong they will repeat the conduct in the future. Only where there is a real risk that an employee's lack of insight means they will commit more serious misconduct in the future will that risk, depending on the circumstances, be capable of justifying the dismissal. Finally, employers should be cautious about relying on a lack of trust and confidence in misconduct cases. The Court of Appeal observed that in almost every case where an employer is entitled to dismiss an employee for misconduct an employer will have lost confidence in that employee. Employers should therefore seek to focus on specific misconduct during the disciplinary process.
