Do organisations that provide services to schools and colleges need to have a written 'no touching' policy about children?

That was one of the issues the EAT had to consider in the case of Hewston v Ofsted after an Ofsted inspector was dismissed for brushing rain off an adolescent boy's hair and forehead during a school inspection.

Facts

Mr Hewston had worked as an Ofsted inspector since 2007. During a routine school inspection, he brushed rain off the hair and forehead of an adolescent boy's head. The pupil was embarassed and looked uncomfortable and raised a complaint. The school reported what had happened to Ofsted and to LADO and Mr Hewston was suspended. The incident was investigated and Mr Hewston was invited to a disciplinary meeting. He was accused of:

• touching a child without their consent
• behaving in a way that was contrary to Ofsted's core values and professional standards, and the Civil Service Code
• breaching the trust and confidence Ofsted had in him; and
• damaging Ofsted's reputation.

Mr Hewston denied that he had acted unprofessionally. He said that the gesture was caring and had been blown out of all proportion by the school which had used it to ‘pick on an inspector’. 

Although Ofsted didn't believe that Mr Hewston's behaviour was a safeguarding issue, it dismissed him for gross misconduct on the basis that his behaviour was a) a grave error of judgment; (b) breached professional standards and c) had destroyed its trust and confidence in him. It did not impose a lesser section because Mr Hewston didn't believe that he had done anything wrong and hadn't shown any contrition.

Mr Hewston appealed. He said that Ofsted didn't have any clear guidance about physical contact with children and had failed to take into consideration his exemplary past record. He also said that he had, in fact, shown contrition and would abide by guidance if he was reinstated. His union rep said that Ofsted should ‘urgently seek to produce clear and unambiguous guidance to inspectors on physical contact with children’ and receive training.

Mr Hewston's appeal was rejected, and he brought a claim for unfair dismissal and another claim (not relevant to this summary). 

Tribunal decision

The tribunal concluded that Mr Hewston's dismissal was harsh but fair and fell within the band of reasonable responses open to employers.

Mr Hewston appealed that decision to the EAT on the basis that it didn't fall within the band of reasonable responses because there were no disciplinary rules which made it reasonably clear that a single instance of touching of this type would likely result in dismissal and he hadn't been told that Ofsted had a ‘no touch’ rule. 

He also argued that his dismissal was procedurally unfair because he had not received several key documents including the complaint raised by the child (which had only been produced during the litigation); and the LADO decision which recommended that Mr Hewston receive training. He argued that this breached the Acas Code of Practice on Discipline and Grievances which requires employers to give copies of any written evidence to the employee before the hearing.

EAT decision

Ofsted argued that the Acas Code didn't require employers to set out every type of misconduct it regards as gross misconduct. The EAT agreed that ‘it is obvious that an employer could not, however long a list it produced, necessarily cover every type of circumstance that might in future arise’. However, it said that the underlying principle is not hard to grasp: ‘it is not fair to dismiss an employee for conduct which he did not appreciate, and could not reasonably have been expected to appreciate, might attract the sanction of dismissal for a single ocurrence’. 

It accepted that there are some types of conduct where it is obvious that an employee might be dismissed - even where these aren't spelled out in a policy. But there are other types of conduct where this is not obvious and organisations may take different approaches. 

In this case, Ofsted had a document which set out examples of gross misconduct. This did not cover physical touch and there was no other document which addressed this. So, the question for the tribunal was this: was Ofsted entitled to take the view that it should have been obvious to Mr Hewston that he should not touch any pupil in the way he had and could be dismissed if he did? It concluded it was not reasonable for the following reasons:

• Mr Hewston had not been told that he could be dismissed for this specific conduct and it was not ‘inherently obvious’ that no notice was needed
• it had failed to properly consider his long service; and 
• Ofsted had failed to disclose important documents (particularly the pupil's complaint which the school had exaggerated a bit) and the LADO report which had been seen by the dismissing manager. This was contrary to basic principles of natural justice and should have led the tribunal to conclude this ommission was unfair.

The EAT substituted a finding of unfair dismissal.

Learning points

If you consider certain types of misconduct to be so serious that any employee commiting them is likely to be dismissed without notice, you need to make this clear in your policies. And that includes referencing conduct that you believe to be obvious.

You will not be able to cite every possible ground that might give rise to someone being dismissed for gross misconduct, but you must include enough examples and categories to put an employee on notice that similar behaviour would be regarded equally seriously.

It is extraordinary that an organisation like Ofsted whose inspectors come into contact with children and vulnerable adults didn't include ‘touching’ in their disciplinary policy, have any written guidance, or train their staff on this. Some forms of touching are obviously inappropriate, but as this case demonstrates, others are not. An employer will find it difficult to convince a tribunal that it acted fairly if it dismisses a member of staff for a particular use of touch based on its own undefined standards or expectations, especially if those expectations were never communicated to the workforce. 

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