Ofsted v Andrew Hewston

On an application for permission to appeal, the Court of Appeal does not decide whether the proposed appeal will succeed. It asks whether the proposed grounds have a real prospect of success.

Permission should be granted where that threshold is met. The court may grant permission on several distinct grounds, including challenges to the assessment of reasonable responses, alleged procedural defects, and the decision whether the appellate tribunal should determine the merits or remit them.

Ofsted applied for permission to appeal against a decision of the Employment Appeal Tribunal. The EAT had overturned the Employment Tribunal’s decision and had decided for itself that Andrew Hewston had been unfairly dismissed from his position as an inspector.

The proposed appeal raised three grounds: whether dismissal fell within the band of reasonable responses; whether there were procedural defects in the investigation and disciplinary proceedings; and whether the EAT should have remitted the question of unfair dismissal to the Employment Tribunal. The central issue was whether those grounds had a real prospect of success.

The application was granted on all three grounds.

1. Approach on permission. The court emphasised that an application for permission to appeal is not a determination of the eventual merits. The court’s task is to decide whether the proposed appeal has a real prospect of success.
2. Ground 1. There was a real prospect of success in challenging the EAT’s conclusion that the Employment Tribunal had been wrong to find that dismissal fell within the band of reasonable responses.
3. Ground 2. There was a real prospect of success in relation to the alleged procedural defects in the investigation and disciplinary proceedings leading to dismissal.
4. Ground 3. There was a real prospect of success in challenging the EAT’s decision to determine for itself whether the dismissal was unfair rather than remitting that question to the Employment Tribunal.
5. Directions. The parties agreed a one-day time estimate. The order was to record the grant of permission, the parties’ agreement about costs, and a constitution of three Lord Justices, including at least one with employment experience.

1. Court of Appeal (Civil Division) granted permission to appeal on all three grounds in [2024] EWCA Civ 410.
2. Employment Appeal Tribunal overturned the Employment Tribunal’s decision and decided for itself that the respondent had been unfairly dismissed.
3. Employment Tribunal had decided that dismissal fell within the band of reasonable responses.