Ofsted inspector unfairly dismissed following safeguarding concerns

In the Court of Appeal case of Hewston v Ofsted, the Judge overturned the Employment Tribunal’s decision, ruling that the Employment Tribunal was incorrect to conclude that the dismissal of a school inspector was fair.

Background

Mr. Hewston was employed by Ofsted as a school inspector. During an inspection, he made physical contact with a pupil when he wiped rainwater off their head and placed his hand on the pupil’s shoulder.

The school raised a complaint about Mr. Hewston’s conduct, prompting Ofsted to initiate disciplinary proceedings. While the disciplinary officer acknowledged that Mr. Hewston’s actions did not constitute a safeguarding concern, he was nonetheless dismissed without notice for breaching professional standards, which resulted in a loss of trust and confidence in him.

Furthermore, the dismissing officer considered Mr. Hewston’s attitude toward his actions during the disciplinary process, specifically his statement that he would not repeat the behaviour due to the stress it caused him, as an aggravating factor, to further justify his dismissal.

Judgment

The Court of Appeal determined that it was unreasonable to expect Mr. Hewston to foresee that his actions might be deemed serious misconduct warranting dismissal. There was no clear policy or training regarding physical contact, and the issue was not addressed in Ofsted’s disciplinary rules.

The Court of Appeal also examined whether Mr. Hewston’s attitude during the disciplinary process could elevate the seriousness of the original conduct to justify dismissal. While the Court recognised that an employee’s attitude might signal a risk of repeat misconduct in some cases, it was not applicable here. Mr. Hewston had stated that he would not repeat the behaviour and was willing to undergo training. His motivations for these statements were irrelevant to the assessment of his conduct.

Additionally, the Court found that the dismissal was procedurally unfair, as Mr. Hewston was not given access to the pupil’s complaint before the disciplinary hearing.

What employers can learn from the Hewston v Ofsted case

This judgment highlights several important considerations for employers:

Clear policies

Employers must implement clear policies to ensure that employees understand expectations and the potential consequences of misconduct.

Training

Adequate training on these policies is essential to prevent misunderstandings and ensure employees are fully aware of their responsibilities.

Full disclosure in disciplinary processes

Employees should be provided with all relevant evidence during the disciplinary process to allow them to properly prepare their defence.

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