A Hewston v Ofsted

The Employment Appeal Tribunal allowed the appellant's appeal in part. The EAT found that the employment tribunal erred in law and fact in concluding that dismissal for a single instance of uninvited physical contact was within the band of reasonable responses. Key legal principles applied include the section 98 framework in the Employment Rights Act 1996, the need to take the ACAS Code into account (section 207(2) TULR(C)A 1992), and the "band of reasonable responses" approach to sanction. The tribunal failed adequately to consider that the claimant had not been forewarned by policy, training or guidance that conduct of this kind could attract summary dismissal, and failed to treat as unfair the employer's withholding of three documents relied on by the dismissing officer (the school's complaint, the pupil's statement, and the LADO email). The EAT substituted a finding of unfair dismissal, quashed the tribunal's dismissal of the wrongful dismissal claim for lack of an independent finding on repudiatory breach, and remitted remedy and the wrongful dismissal complaint to a different tribunal.

Background and facts: The claimant, a long-serving Social Care Regulatory Inspector employed by Ofsted, was accused after a school inspection of brushing rainwater from a pupil's head and touching the pupil's shoulder. Following suspension, an internal investigation and disciplinary and appeal hearings, he was summarily dismissed for gross misconduct for initiating uninvited physical contact. He brought complaints of unfair dismissal and wrongful (summary) dismissal to the employment tribunal. Employment Judge Dean dismissed both complaints. The claimant appealed to the EAT.

Nature of the claim / relief sought: The appellant sought reversal of the tribunal's findings that his dismissal was fair and not wrongful. He argued, inter alia, that the tribunal misapplied the ACAS Code and the band of reasonable responses because there was no written rule, policy or training warning that a single, brief touching could lead to dismissal; that relevant documentary evidence had been withheld; and that the tribunal failed to make its own objective finding on whether the conduct amounted to a repudiatory breach of contract.

Issues framed by the court:

• Whether the respondent had a potentially fair reason for dismissal (conduct) and whether dismissal fell within the band of reasonable responses (section 98 ERA 1996).
• Whether the tribunal sufficiently applied the ACAS Code (and its paragraphs) and proper standards of procedural fairness, including disclosure of evidence relied upon in the disciplinary process.
• Whether the tribunal made an independent, objective finding on whether the conduct amounted to a repudiatory breach (wrongful dismissal).

Court's reasoning and disposition: The EAT held that while an employer need not catalogue exhaustively every act that could justify summary dismissal, it is unfair to dismiss an employee for conduct of which the employee could not reasonably have known might attract summary dismissal. The tribunal erred in failing to give proper weight to the absence of any clear policy or training on "no touch" or the circumstances in which touching children would warrant dismissal, and in failing properly to consider the effect of withholding three documents (the school complaint, the pupil's statement and the LADO email) that had been seen by the dismissing officer. The EAT concluded that, on the tribunal's own findings of fact, dismissal was unfair and substituted that outcome. On wrongful dismissal, the EAT found the tribunal had not made a sufficiently clear independent finding that the conduct amounted to a repudiatory breach and therefore quashed that part of the decision and remitted wrongful dismissal and remedy for unfair dismissal to a different tribunal judge to decide afresh.

Procedural note: The EAT substituted the finding of unfair dismissal and remitted wrongful dismissal and remedy; it declined to substitute a finding of wrongful dismissal because more than one outcome remained open on the material before it.

Appeal allowed in part. The EAT held that the employment tribunal erred in law and/or approach when it upheld dismissal as within the band of reasonable responses without properly considering that the claimant had not been forewarned by policy, guidance or training that a single incident of the sort could lead to summary dismissal and without treating as unfair the employer's withholding of material documents relied on by the decision-maker. The EAT substituted a conclusion that the dismissal was unfair, quashed the finding on wrongful dismissal for lack of a clear independent tribunal finding as to repudiatory breach, and remitted remedy and the wrongful dismissal complaint to a different tribunal judge for redetermination.

Appeal from the decision of the Employment Tribunal (Employment Judge Dean) which had dismissed complaints of unfair dismissal and wrongful dismissal arising from summary dismissal on 21 November 2019. The EAT gave judgment on 4 August 2023 ([2023] EAT 109), quashing the tribunal's liability conclusions and remitting remedy and the wrongful dismissal complaint to a different tribunal judge.