Gross misconduct dismissal was unfair due to lack of policy

In Hewston v Ofsted the Court of Appeal upheld the unfair dismissal claim of a school inspector who had been dismissed for touching a pupil.

Mr Hewston was an Ofsted school inspector who, during an inspection had brushed rainwater off the forehead of one child and put his hand on a child’s shoulder. The school complained to Ofsted. Ofsted dismissed Mr Hewston for gross misconduct, finding that whilst he had not done anything amounting to harm or a safeguarding breach, he had brought Ofsted into disrepute. The Employment Tribunal rejected his claim for Unfair Dismissal, but this was overturned by the EAT. They found that his dismissal was unfair because Ofsted did not have a “no touch” policy and there had been no relevant training provided to the employee.

Ofsted appealed to the Court of Appeal, arguing that it was not simply the touching that led to dismissal, but also a lack of contrition and insight by the employee.

The Court of Appeal upheld the finding of Unfair Dismissal, commenting:

• The EAT asked itself the right question, namely whether in the absence of a “no touch” policy, it was reasonable for Ofsted to conclude that Mr Hewston should have realised his conduct warranted dismissal.
• In relation to the employee’s attitude towards the conduct, the Court commented that the attitude did not convey a risk of serious misconduct in the future.
• The EAT was correct to find that the dismissal was procedurally unfair because Mr Hewston had not been shown the pupil’s statement, the school’s complaint letter or the LADO response,

The Court therefore found that both the procedure followed, and the substantive decision to dismiss, fell outside a range of reasonable responses open to Ofsted.

This case is a reminder of the importance of having clear rules in place as to what constitutes gross misconduct. Whilst not every behaviour can necessarily be covered in a policy, the employer here taking the stance that you must never touch a child did not have that rule in place and had never issued that instruction to the employee. It was therefore unfair to dismiss for a one-off incident in which it had not been made clear to him that there would be a zero-tolerance approach.