Employment & Pensions Blog: The principles of conduct dismissals following Hewston v Ofsted

Giving judgment earlier this month in the case of Hewston v Ofsted, the Court of Appeal has handed down a helpful reminder to employers about the first principles of conduct dismissals. 

Background

Mr Hewston had worked as an inspector for Ofsted for over 12 years, and he had an unblemished disciplinary. During a school inspection he brushed rainwater off a Year 8 pupil’s head and lightly touched their shoulder. The school issued a lengthy complaint to Ofsted, who then issued disciplinary proceedings against Mr Hewston. Whilst Ofsted accepted that what Mr Hewston did was not a safeguarding issue, they determined that as an experienced inspector he should have known better than to initiate uninvited physical contact with a pupil. Importantly Ofsted did not have any policy specifically prohibiting physical contact with a child, and at the disciplinary hearing Mr Hewston argued that what happened did not fit the definition of gross misconduct and he thought his actions were appropriate.

Following a disciplinary hearing, Ofsted terminated Mr Hewston’s employment for gross misconduct. Mr Hewston was dismissed for his “lack of contrition or recognition of any wrongdoing” which had “destroyed the relationship of trust and confidence,” the reputational harm his actions had caused, and the uninvited nature of his contact with the child (albeit it wasn’t a safeguarding issue). 

Mr Hewston brought claims against Ofsted for unfair dismissal and wrongful dismissal. 

Employment Tribunal and Employment Appeal Tribunal (EAT)

The Employment Tribunal dismissed Mr Hewston’s claims, finding that the decision to dismiss for gross misconduct was fair and reasonable in all the circumstances of the case.

Mr Hewston appealed to the EAT on the basis that the Tribunal had failed to take into account that Ofsted didn’t have any policy or disciplinary rule making it clear to him that a single instance of this type of conduct would be treated as possible gross misconduct. The EAT agreed and overturned the Tribunal’s decision, holding Mr Hewston had been unfairly dismissed. Specifically, the EAT said that dismissal cannot have been a reasonable response to what happened without a policy or some form of warning or training that conduct like that might lead to dismissal. 

Ofsted appealed to the Court of Appeal. 

Court of Appeal 

In dismissing Ofsted’s appeal, the Court of Appeal endorsed the EAT’s approach and determined that Mr Hewston had been unfairly dismissed. 

The Court of Appeal held that it was common sense that it will normally be unfair to terminate someone’s employment for an act they could not reasonably expect an employer to regard as serious misconduct. Whilst an employer is not limited to only the examples of gross misconduct set out in their disciplinary policy, where the act of misconduct in question is not in that list, the employer must be able to demonstrate that it was reasonable to characterise what happened as serious misconduct. 

In this case the physical contact was not expressly prohibited by Ofsted’s policies, nor had Mr Hewston received any prior training or warnings that such behaviour might be treated as a disciplinary matter. Therefore, he had been unfairly dismissed. The Court rejected Ofsted’s argument that the seriousness of the conduct could be elevated based on the Mr Hewston’s perceived lack of insight or contrition during the disciplinary process. 

Addressing the point about damage to Ofsted’s reputation, the Court of Appeal held that “reputational harm may be a relevant factor in reaching a disciplinary decision. But it cannot be a stand-alone basis for such a decision; there must at least be some misconduct.” The first question was therefore whether what Mr Hewston did was misconduct, and (if it was) any reputational damage could then be considered. Ofsted could not rely on reputational damage as a justifiable reason to dismiss, in circumstances where Mr Hewston had not committed any misconduct in the first place.  

Comment

This case offers a timely reminder of the need for clarity in disciplinary policies around what can amount to misconduct or gross misconduct. It also serves as a warning against an employee’s denial of wrongdoing does not on its own justify a more serious disciplinary sanction. 

Employers cannot rely on generalised expectations of behaviour where there is no clear policy guidance in place. Where the conduct under investigation is not one of the examples of gross misconduct in the policy, employers must ask themselves whether the employee could reasonably expect the conduct to amount to gross misconduct. If they couldn’t reasonably expect it – for example, because of a lack of warning, training etc. - the decision to terminate their employment could amount to unfair dismissal.  

If you require any further guidance in relation to unfair dismissals, please contact a member of the Employment Team.