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In March 2025, in the case of OFSTED v Hewston [2025] EWCA Civ 250, the Court of Appeal found that OFSTED’s dismissal of an inspector for brushing rainwater off a child during an inspection, had been unfair, partly due to the absence of a policy expressly prohibiting physical contact with children.
Background and original Employment Tribunal and Employment Appeal Tribunal decisions
In October 2019, whist inspecting a school, an OFSTED inspector brushed water off a 12-year-old boy’s head and shoulder, after the child had been caught in a rainstorm.
The incident was reported to OFSTED by the school as a case of inappropriate touching and OFSTED consequentially launched disciplinary proceedings into the incident.
In proceedings, the inspector maintained that his conduct had not been inappropriate, but explained that he would not do it again due to the stress it had caused, and also was open to additional training. Despite this, and the inspector’s previously unblemished disciplinary record in the 12 years with OFSTED, he was dismissed for gross misconduct in November 2019.
The dismissing officer agreed with the inspector’s assertions that the conduct had not been inappropriately motivated, and there were no related safeguarding concerns, however reasoned that dismissal was justified as the inspector should have known better than to initiate unexpected physical contact with a child during an inspection (despite there being no express OFSTED policy in place prohibiting physical contact with students).
During the disciplinary process, the inspector had not been provided with all the evidence that the dismissing officer had access to when making their decision. The inspector also made clear that he believed this was an exaggerated reaction by the school by way of attacking OFSTED given the animosity between schools and OFSTED.
The inspector appealed the dismissal decision, but it was upheld, leading the inspector to issue claims for wrongful and unfair dismissal in the Employment Tribunal (the Tribunal). The Tribunal dismissed the claim in 2023 as it found that the dismissal fell within the band of ‘reasonable responses’ open to an employer.
The inspector appealed, and the Employment Appeal Tribunal (the EAT) found that the dismissal had been substantively and procedurally unfair. Substantively unfair, because without clear express policy or training against contact with students, it would not have been obvious to the inspector that his actions could be considered gross misconduct and he could be dismissed for it. Furthermore, there were no flagged safeguarding issues related to the conduct. On the procedural unfairness point, the EAT found that the dismissing officer’s failure to share all evidence with the inspector prior to making the decision denied the inspector the opportunity to fully understand the case against him.
OFSTED appealed this judgment, asserting that the EAT had ruled incorrectly, particularly with regard to the importance the EAT gave to the absence of published guidance or disciplinary rules on physical touch, and contended that the EAT had failed to appropriately deal with the inspector’s failure to admit their conduct was wrong. The case was escalated to the Court of Appeal (the COA).
Court of Appeal findings
The COA unanimously dismissed the appeal, agreeing with the EAT’s findings on both the substantive and procedural unfairness grounds. The COA reconfirmed that at no point had there been any suggestion of improper motivation by the inspector and consequentially found that his conduct would not reasonably have warranted dismissal. The COA ruled that an employer cannot increase the significance of an action because an employee fails to show proper contrition or insight.
Key takeaways for employers from this judgment:
Policies, procedures, guidance and training that define gross misconduct and acceptable professional boundaries must be in place, to provide clarity and guidelines to employees – especially for employees whose work will involve interaction with children or vulnerable individuals.
The importance of following fair and transparent disciplinary procedures – in particular, the need to share all evidence with the employee during the disciplinary process to ensure they fully understand the case against them.
The need to ensure any response to employee misconduct is proportionate.
To discuss any of the issues raised in this article please contact Kate Gardner or Sonia Bungaroo Valdés.
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