The recent case of Hewston v Ofsted [2025] EWCA Civ 250 has provided some insight into the scope of conduct-based unfair dismissal claims. Find out more below.
Case summary
In this case, Mr Hewston (Mr H) was employed as a school inspector by Ofsted. During one inspection, Mr H brushed water off a 12-year-old pupil’s forehead and put his hand on the pupil’s shoulder. This made the pupil feel uncomfortable, and his school reported the incident to Ofsted and the Local Authority Designated Officer (LADO) for safeguarding. The LADO, having reviewed the pupil’s statement, wrote to Ofsted about the incident, alleging that the pupil’s safety had been put at risk.
Mr H was invited to a disciplinary hearing where he maintained that he did not feel the incident fell within the scope of gross misconduct but stated that he would not do it again and agreed to undergo training.
Mr H was subsequently dismissed for gross misconduct and the dismissal letter made it clear that whilst there was no harm or safeguarding breach to the pupil, Mr H’s actions had brought Ofsted into disrepute. Mr H then brought a claim in the Employment Tribunal for unfair dismissal.
The Tribunal held that Ofsted had conducted a fair and reasonable investigation and dismissed Mr H’s claim. Mr H appealed this decision to the Employment Appeal Tribunal (EAT) where it was held that the dismissal was procedurally unfair as Mr H had not been shown relevant statements from the pupil, LADO and the school amongst other things.
Ofsted appealed this decision to the Court of Appeal (CA), but the appeal was unanimously dismissed for the following reasons:
- The EAT was correct in finding that the Tribunal should have considered whether Mr H acknowledged that his actions could lead to a dismissal.
- There was a lack of improper motivation on Mr H’s part, his intention was merely to assist the pupil.
- It is not typically fair to dismiss an employee in circumstances where they did not expect their actions to be taken as serious misconduct.
- The incident did not display a safeguarding threat and there was no relevant training provided to Mr H prior to the incident.
- In assessing the seriousness of Mr H’s conduct, his alleged lack of remorse was irrelevant as this did not pose the threat of a repeat offence in the circumstances.
- The fact that Mr H had not been showed relevant documentation rendered the disciplinary procedure unfair as it went against good practice which is to show the accused (in the absence of a good reason not to) a record of the complaint(s) against them.
Key takeaways
- This decision highlights the importance of staff training and clearly defined policies, particularly where employees work with children or other vulnerable individuals. One of the turning points in the decision was the lack of training provided to Mr H, which he then relied on to show that he could not be reasonably expected to appreciate that his actions would have led to a dismissal.
- Another important factor in the EAT and subsequent CA decision was that Mr H had not been shown the pupil’s complaint statement and other relevant documents which would have assisted him in his defence. Accordingly, this case stresses the importance of accurate record keeping and open communication (where possible) between parties in unfair dismissal claims.
- The CA decision reaffirms the importance of an accused employee’s perspective of their actions in dismissals arising from alleged misconduct. The decision shows that it is not always sufficient for an employer to apply a blanket approach when determining whether certain actions will result in a dismissal.
Overall, this case is useful in clarifying the scope of conduct-based unfair dismissal claims. This is particularly relevant at the moment as we all await anticipated reforms which could also affect the scope unfair dismissal claims.
If you have queries, concerns or require any assistance with raising or defending an unfair dismissal claim, please contact a member of the Employment team at Glaisyers ETL.
