Without 'no touching' policy it was unfair to dismiss Ofsted inspector for brushing rain off pupil
An unexpected rainstorm led to the dismissal of Mr Hewston, an Ofsted inspector, after he brushed water off a boy's head and touched his shoulder. This incident sparked a legal battle questioning the fairness of his dismissal given that there was no policy pre-warning that such behaviour could result in termination.
Mr Hewston believed his actions were appropriate; he considered wiping rain from the boy's head a caring gesture and saw no reason to think it would make the child uncomfortable. Although he said he wouldn't repeat his actions and would undergo training, this was due to the trouble it had caused him rather than any belief that he had done something wrong.
While the employment tribunal found that his dismissal was fair, the Employment Appeal Tribunal (EAT) overturned this decision and agreed with Mr Hewston that his dismissal was unfair. You can read more about the background to the case in our article published after the EAT judgment.
Since then, Ofsted has appealed the EAT judgment to the Court of Appeal.
What did the Court of Appeal say?
Ofsted's decision to dismiss Mr Hewston wasn't based on any ‘no touching’ rule, but because it believed that, as a senior and experienced inspector, he should have recognised that touching a pupil in the way he did was gravely unprofessional.
Therefore, the EAT asked itself this question: in the absence of a ‘no touching’ policy was it reasonable for Ofsted to view Mr Hewston's conduct as being of a kind which he should have realised would be regarded as warranting dismissal?
The Court of Appeal agreed that this was the correct question to ask. In addressing it they stated that while Ofsted may have been justified in viewing Mr Hewston's actions as a misjudgment, it was not of a type that suggested a real risk of serious misconduct in the future; there were no safeguarding concerns.
The Court of Appeal also noted that it was difficult to see how it could be reasonable for an employer in these circumstances to bump up the seriousness of the conduct just because an employee failed to show “proper contrition or insight” during the disciplinary process. Therefore, his failure to acknowledge the misjudgment did not warrant dismissal.
The EAT's fundamental point was that, in the absence of a ‘no touching’ policy or any other explicit guidance covering this situation, Mr Hewston had no reason to believe that he was doing anything so seriously wrong as to justify dismissal, and that his subsequent attitude did not make any difference. The Court of Appeal said that this conclusion was “plainly right”, and the dismissal was substantively unfair.
While the Court of Appeal said that, given their findings, they did not need to consider the procedural ground of appeal, they nevertheless addressed it briefly.
At the disciplinary hearing, Mr Hewston suggested that the complaint from the school may be driven by animosity towards Ofsted rather than any genuine distress experienced by the pupil. He was eventually shown the complaint from the school at his appeal, he was not given the pupil's statement. Therefore, he didn't know that the school's complaint went beyond what the pupil had said and that was procedurally unfair.
The Court of Appeal emphasised that where an employee is accused of misconduct against another person, it's obviously good practice to show them any contemporary record of that person's complaint, unless there is good reason not to do so.
What does this mean for employers?
The Court of Appeal's decision makes it clear that you consider a rule or type of misconduct to be so important, that anyone breaching it is likely to be dismissed the first time they do it, you need to say so.
Have a read through your policy. Does it include examples of misconduct that you consider to be gross misconduct? Do these encompass the issues you encounter in your organisation? If it doesn't now would be a good time to revise it. Bear in mind that you won't be able to list every single thing that might lead to someone being dismissed for a first offense. But your staff do need to have sufficient information for you to establish that that they knew, or ought to have known, that breaching these could lead to their dismissal.
But even if an act is listed in your policy as grounds for immediate dismissal, you must still ensure that the dismissal is both substantively and procedurally fair. That means that you need to consider whether dismissal is reasonable and any mitigating factors the employee offers to explain their behaviour.
In terms of procedural fairness, you must give the employee all of the evidence they need to properly defend themselves. And if they are fighting for their job, they need to know that, in advance of the hearing.
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