The recent case of Hewston v Ofsted reinforces key principles for conduct dismissals.
Case Overview
Mr Hewston was an inspector employed by Ofsted with 12 years of continuous service and, up until the events which led to his dismissal, a clean disciplinary record. Mr Hewston brushed rainwater off a student’s head which made the student feel uncomfortable. Following a complaint from the school, an investigation by Ofsted led to Mr Hewston being summarily dismissed.
His conduct was not a safeguarding concern, but the dismissing officer said he should have known better than instigating uninvited physical conduct with a child.
Ofsted did not have a policy prohibiting physical contact with children, nor disciplinary rules indicating that the use of touch could amount to misconduct. Mr Hewston maintained that his conduct had been appropriate. The dismissing officer took this as evidence of a lack of remorse, which formed part of the reason for dismissal.
After being summarily dismissed, Mr Hewston brought claims of wrongful and unfair dismissal. The Tribunal at first instance concluded that the dismissal fell within the band of reasonable responses and rejected his unfair dismissal claim.
Mr Hewston appealed. The Employment Appeal Tribunal subsequently found he had been unfairly dismissed. They concluded that he had not been adequately forewarned that dismissal could result from such conduct. They also noted the lack of a ‘no touch’ policy or training.
A further appeal was made to the Court of Appeal which was dismissed and the original decision by the EAT upheld. Mr Hewston’s actions were not deemed of a kind that reasonably warranted dismissal.
Key Findings
The Court of Appeal reaffirmed key principles in conduct dismissals:
1. Forewarning – The Tribunal noted that Mr Hewston had not been forewarned, by a written policy, training or otherwise, that an incident of physical contact of this sort could result in dismissal.
2. Providing Documents – The Tribunal highlighted that he had not been provided with copies of relevant documents prior to the decision.
3. Remorse – The case highlights that Mr Hewston’s remorse, or lack thereof, should not ‘bump’ the seriousness of conduct which is otherwise not capable of justifying dismissal.
4. Reputational Harm – The Tribunal stated that whilst reputational harm can be a relevant factor in reaching a disciplinary sanction, it cannot be a stand-alone reason for the decision; there must be some misconduct.
Advice to Employers
To mitigate risk in conduct dismissals, employers should:
· Provide relevant documentation before disciplinary meetings
· Review policies and include examples of gross misconduct
· Conduct regular training on workplace expectations
· Avoid over-reliance on employee remorse in disciplinary decisions. Whilst still relevant, lack of remorse shouldn’t lead to an increase in the level of sanction imposed
What’s Next?
Carrying out an investigation that could result in an employee being summarily dismissed is not without risk. Tozers offers advice on various employment matters. If you require assistance, please do give us a call on 01392 207020. You can also review other insights drafted by our Employment Team.
