OFSTED v Hewston – a cautionary tale
OFSTED v Hewston – a cautionary tale for employers looking to dismiss for misconduct
The Court of Appeal this month handed down judgment in the case of OFSTED v Hewston [2025] EWCA Civ 250
This case provides a helpful reminder of the principles applying to unfair conduct dismissals.
Background
The Claimant, Mr Hewston was employed as an OFSTED inspector. At the time of his dismissal, he had 12 exemplary years of service.
During an inspection the Claimant brushed rainwater off a pupil’s head and touched the child’s shoulder, asked if he was OK. Following the inspection the school proceeded to make a complaint about the inspection and referenced, amongst other things, the Claimant’s conduct.
OFSTED initiated disciplinary proceedings against the Claimant and ultimately proceeded to dismiss the Claimant, thereafter, upholding the decision on appeal. Whilst accepting the Claimant’s actions did not give rise to safeguarding concerns OFSTED considered the Claimant should have known better than to initiate physical contact with a pupil. Notably, OFSTED did not have a policy that prohibited such conduct and had not provided guidance to its employees on the subject.
The Claimant maintained throughout the disciplinary that he did not consider his conduct inappropriate but said he would not do it again owing to the stress it had caused. He suggested the school had blown the issues out of proportion for their own ends.
The Employment Tribunal dismissed the Claimant’s claims of wrongful and unfair dismissal, concluding that dismissal fell within the band of reasonable responses.
The Employment Appeal Tribunal [EAT] subsequently allowed the appeal, finding the Claimant had been unfairly dismissed.
OFSTED sought to appeal the EAT’s decision on the grounds that it has erred when treating the absence of guidance and disciplinary role on physical contact as dispositive and, when failing to appreciate the conduct was the Claimant’s substantive conduct and his insistence he had done nothing wrong.
The Court of Appeal dismissed the appeal finding that the EAT had correctly directed itself, when asking whether it was reasonable for the dismissing officer to take the view that the conduct was of a kind which would warrant dismissal for a first-time offence.
The Court of Appeal further observed the Claimant’s attitude, could not be said to be demonstrative of a risk of further misconduct, noting that it would be hard to see how it could ever be reasonable for an employer to bump-up the seriousness of conduct, not itself capable of justifying dismissal because an employee failed to show proper contrition or insight where this would place an employee who seeks to defend themselves in an impossible position.
In a similar vein, and echoing recent finding in the case of Higgs v Farmors School [2025] EWCA 6 Civ 109 the Court observed that reliance on loss of trust and confidence cannot justify dismissal for misconduct, unless an employee has been guilty of conduct sufficiently serious to have justifiably had that effect – noting reputational harm may be a relevant factor in reaching a disciplinary decision but it cannot be a stand-alone basis for such a decision. There must at least be some misconduct.
The Court also found the dismissal was procedurally unfair where the Claimant had not been provided a copy of the pupil’s statement and where the school was said to have put a gloss on the complaint such this the statement may have supported the Claimant’s argument about the school’s ulterior motive.
My thoughts
This is a cautionary tale for employers who look to bolster allegations of misconduct, by citing loss of trust and confidence and reputation harm to justify dismissal where the underlying misconduct itself would not be sufficiently serious to justify dismissal.
This is a welcome judgment. The law is complex. And, whilst not wishing to oversimplify the law to me this was application by the Court of Appeal of good, old fashioned common sense. To my mind, the Claimant should never have been dismissed for conduct which I anticipate many would recognise was not sufficiently serious to warrant dismissal. He should never have been dragged through the courts, at public expenses, and subject years of litigation to clear his name.
Dismissal is a draconian sanction. It derails careers. It is reputationally damaging, causes financial loss and undermines an individual’s health and wellbeing. It should be a sanction of last resort. However, all too often it is the knee jerk reaction of risk averse employers to avoid public criticism or scrutiny. Hopefully, this judgment, will serve as a reminder to employers to ensure they make well consider decisions before proceeding to dismiss.
If you are affected by dismissal or have to dismiss someone and you require legal advice, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in the free Contact Us form and we will get in touch as soon as possible.
