A Hewston v Ofsted

An employer need not list every possible form of gross misconduct. However, it is unfair to dismiss an employee for a single act unless the employee knew, or could reasonably have been expected to know, that the act might attract dismissal. Some conduct is inherently serious enough to require no express warning. Other conduct requires fair forewarning through rules, guidance, training, or sufficiently analogous examples.

An employee’s lack of insight or remorse cannot make dismissal fair where dismissal for the substantive charged conduct was itself outside the band of reasonable responses. Further misconduct during a disciplinary process should be separately charged. A wrongful-dismissal claim also requires the tribunal’s own objective finding of repudiatory breach; the employer’s reasonable belief is insufficient.

The claimant, an Ofsted Social Care Regulatory Inspector, was summarily dismissed after touching a schoolchild’s head and shoulder during an inspection. The school complained, and the respondent conducted an investigation and disciplinary process. The claimant maintained that his action was a caring gesture and that there was no no-touch policy, relevant training, or clear warning that a single incident of this kind could lead to dismissal.

The Employment Tribunal at Birmingham dismissed complaints of unfair dismissal and wrongful dismissal. It found that dismissal for gross misconduct was within the range of reasonable responses and that the claimant had breached an essential contractual term.

The claimant appealed. The central issues were whether he had been fairly forewarned of the possible sanction, whether the procedure was fair when material documents were withheld, and whether the tribunal had independently decided the contractual claim for wrongful dismissal.

1. Appeal allowed. The finding that the dismissal was fair was quashed and replaced with a finding of unfair dismissal. The case was remitted to a different Employment Tribunal for remedy and for redetermination of wrongful dismissal.

2. Under section 98(4) of the Employment Rights Act 1996, an employer need not produce an exhaustive list of conduct capable of amounting to gross misconduct. Fairness nevertheless requires that an employee be on fair notice that a single occurrence of the relevant type of conduct may lead to dismissal, unless its inherent seriousness makes that consequence obvious. The respondent had no policy or training dealing specifically with physical touch, did not operate a no-touch policy, and the incident was not a safeguarding issue. The tribunal was therefore bound to find that dismissal for this conduct, without such notice, was unfair.

3. The claimant’s subsequent attitude could not avoid that conclusion. Lack of insight or remorse may affect sanction within an otherwise reasonable range. It cannot render dismissal fair if dismissal for the charged substantive conduct was not open to the employer. If conduct during the disciplinary process itself amounts to additional misconduct, it should be separately charged so that the employee can answer it.

4. The procedure was also unfair. The dismissing officer saw the school’s complaint, the child’s statement, and the Local Authority Designated Officer’s email. The claimant was not given the child’s statement or the email before dismissal. He was thereby denied a fair opportunity to make submissions about material relied upon against him. Provision of the school complaint at the internal appeal could potentially cure that particular omission, but not the other failures.

5. Wrongful dismissal required a distinct, objective determination of whether the claimant’s conduct was a repudiatory breach of contract. The tribunal could not decide that claim merely from the respondent’s reasonable view that trust and confidence had been damaged. Its reasons did not clearly record its own conclusion or explain why the conduct objectively justified summary termination. That decision was accordingly quashed and remitted.

• Employment Appeal Tribunal — allowed the claimant’s appeal, substituted a finding of unfair dismissal, and remitted wrongful dismissal and remedy: [2023] EAT 109.
• Employment Tribunal, Birmingham — dismissed the claimant’s complaints of unfair dismissal and wrongful dismissal.