Tag: unfair dismissal

Facts: Mr Hewston was an Ofsted school inspector with over 12 years of service and a clean disciplinary record. However, following an incident during an inspection (when Mr Hewston brushed rainwater off the forehead of a 12-year-old boy returning from a rainy PE lesson and placed a hand on the boy’s shoulder) the school submitted a complaint to Ofsted and to the local authority designated officer for safeguarding (LADO). It said that Mr Hewston’s physical contact with the boy was inappropriate and made him feel uncomfortable.

The LADO reviewed the matter and advised Ofsted to investigate, potentially with a view to offering further training.

Ofsted undertook a disciplinary process. During this process, Mr Hewston said the school had exaggerated the situation as it was hostile to Ofsted and wanted to find reason to target an Ofsted inspector. He also maintained that the incident did not amount to gross misconduct (although he admitted the physical contact, he said it was meant to be a sympathetic gesture). But he said he would avoid physical contact in future due to the stress it had caused and was willing to undergo training.

Despite this, Ofsted dismissed Mr Hewston for gross misconduct – on the basis of his lack of judgment, breaching professional standards and bringing Ofsted into disrepute. It also said he had not shown sufficient insight or remorse to reassure them that such conduct would not recur. That said, the dismissal letter made clear that he was not considered a safeguarding risk and had not caused harm.

Mr Hewston brought a claim for unfair dismissal.

Tribunal decision

The Tribunal dismissed Mr Hewston’s unfair dismissal claim. It said Ofsted had conducted a fair and reasonable investigation and had formed a reasonable belief that his actions undermined trust and confidence in his abilities and this amounted to gross misconduct.

Mr Hewston appealed.

EAT decision

The EAT overturned the Tribunal’s decision and said Mr Hewston had been unfairly dismissed. In particular, there did not appear to be any safeguarding issues, Ofsted failed to forewarn Mr Hewston about the consequences of this type of conduct (it was not described as gross misconduct and there did not appear to be a ‘no touch’ policy) and Mr Hewston had not undergone any relevant training. The EAT also said the dismissal was procedurally unfair as key documentation (both the pupil’s and the school’s complaints) had not been shared with Mr Hewston during the disciplinary process.

Ofsted appealed.