In a significant ruling for employers working with children or vulnerable individuals, the Court of Appeal has upheld the Employment Appeal Tribunal’s decision in Hewston v Ofsted [2025] EWCA Civ 250, finding that the dismissal of a school inspector for a single, well-intentioned act of physical contact with a pupil was unfair, due to the absence of a clear policy or relevant training.
Background
Mr Hewston, an Ofsted school inspector since 2007, was dismissed for gross misconduct following an incident during a school inspection in which he brushed rainwater from a pupil’s hair and briefly touched the child’s shoulder. Though the act was intended as a gesture of care, the school reported the incident, leading to a complaint and subsequent investigation. While there was no safeguarding breach, Ofsted concluded the act had “brought the organisation into disrepute”, citing a lack of remorse as further justification for dismissal.
The Employment Tribunal initially sided with Ofsted, but the EAT overturned the ruling, and the Court of Appeal has now dismissed Ofsted’s appeal, affirming the dismissal was both substantively and procedurally unfair.
Key Findings from the Court of Appeal
- No Policy or Training: The Court agreed with the EAT that in the absence of a “no touch” policy or relevant training, it was not reasonable for the employer to expect Mr Hewston to foresee that such conduct could lead to dismissal.
- No Safeguarding Risk: The incident was not deemed harmful, inappropriate, or motivated by misconduct. It was not reasonable to label the behaviour as gross misconduct in these circumstances.
- Attitude Post-Incident: Ofsted argued that Mr Hewston’s lack of insight or contrition contributed to their decision. However, the Court rejected this, stating that his willingness to undergo training and avoid repeating the behaviour should have been enough, regardless of motive.
- Procedural Failings: The disciplinary process was flawed as key documents, including the pupil’s statement, the school’s complaint, and the LADO’s safeguarding feedback, were not disclosed to Mr Hewston during proceedings, depriving him of the chance to respond fully.
Practical Implications for Employers
This ruling underscores the importance of:
- Having clear, written policies in place regarding physical contact or other sensitive areas of conduct, particularly where employees work with children or vulnerable people.
- Providing training so staff understand behavioural boundaries and the potential consequences of crossing them.
- Avoiding reliance on “lack of remorse” as a standalone justification for dismissal unless there is clear evidence of future risk.
- Ensuring procedural transparency, including disclosing all relevant evidence in disciplinary proceedings to ensure fairness.
Final Word
The judgment serves as a reminder that dismissal must fall within the range of reasonable responses and that employees must be given fair notice of what conduct is unacceptable. Where that clarity is missing, especially in cases that do not involve harm or malicious intent, dismissal is unlikely to be considered fair.
