Andrew Hewston v Ofsted

The Court of Appeal dismissed OFSTED’s appeal against the Employment Appeal Tribunal decision that Mr Hewston had been unfairly dismissed. The key legal principles applied were the two-stage test under section 98 of the Employment Rights Act 1996 (identification of a potentially fair reason and then whether dismissal was reasonable), the proper application of the "range of reasonable responses" concept (as explained in Foley v The Post Office), and the relevance of the ACAS Code on disciplinary procedures. The court accepted the EAT’s conclusions that (a) in the absence of a clear "no-touch" policy or other advance guidance, the claimant had not been put on fair notice that wiping rain from a pupil’s forehead could justify summary dismissal; and (b) procedural unfairness arose from OFSTED’s failure to disclose the pupil’s contemporaneous account and the school’s complaint to the claimant prior to dismissal. The claimant’s asserted attitude during disciplinary proceedings (lack of contrition or lack of insight) did not convert conduct that was, on the facts, a culpable misjudgement into conduct of a kind that a reasonable employer could dismiss for.

The claimant, an experienced OFSTED social care regulatory inspector, brushed rain from the forehead and touched the shoulder of a pupil during a school inspection on 8 October 2019. The school complained and the Local Authority Designated Officer (LADO) was notified. OFSTED suspended the claimant, investigated and charged him with touching the child without consent, acting inappropriately contrary to OFSTED standards, breaching trust and confidence and damaging OFSTED’s reputation; he was dismissed for gross misconduct on 21 November 2019.

The claimant brought claims for unfair and wrongful dismissal. An Employment Tribunal dismissed both claims (written reasons issued 3 March 2022). The claimant appealed to the Employment Appeal Tribunal which, on 4 August 2023 ([2023] EAT 109), allowed the unfair dismissal appeal and remitted remedy to the Employment Tribunal; wrongful dismissal was remitted for determination. OFSTED obtained permission to appeal to the Court of Appeal on the unfair dismissal point.

The principal issues were (i) whether it was reasonable to dismiss for the conduct in question, having regard to section 98 of the Employment Rights Act 1996 and the range of reasonable responses; (ii) whether the claimant’s attitude in disciplinary proceedings could render dismissal reasonable when the substantive act was not one for which dismissal would have been obvious; and (iii) whether procedural fairness was breached by OFSTED’s failure to disclose material documents (the pupil’s contemporaneous form and the school’s complaint) to the claimant before dismissal.

The Court of Appeal agreed with the EAT. It held that, although the touching was a misjudgement, it was not of such inherent seriousness that an employee could reasonably be taken to be on notice that the act could attract summary dismissal, particularly because OFSTED had no "no-touch" rule or training guidance to that effect and the incident did not raise a safeguarding concern. The court also accepted that withholding the pupil’s written account and the school’s complaint from the claimant before dismissal was a procedural impropriety because those documents might have materially supported the claimant’s explanation that the complaint had been exaggerated by a hostile school. The claimant’s defensive stance in the hearing did not make dismissal reasonable where the substantive conduct was not of a dismissible character.

Appeal dismissed. The Court agreed with the EAT that the dismissal was substantively unfair because OFSTED had not given the claimant fair notice (no "no-touch" policy or training) that the conduct alleged could attract summary dismissal, and that dismissal was also procedurally unfair because material documents (notably the pupil’s contemporaneous account and the school’s complaint) seen by the decision-maker were not disclosed to the claimant. The claimant’s attitude in the disciplinary proceedings did not justify elevating the conduct to a dismissible level.

Employment Tribunal (Birmingham) dismissed the claims after a five-day hearing; written reasons sent 3 March 2022. Employment Appeal Tribunal (HHJ Auerbach, Professor Rowland and Miss Lenehan) allowed the unfair dismissal appeal and remitted remedy on 4 August 2023 [2023] EAT 109. Permission to appeal to the Court of Appeal was granted and this Court dismissed OFSTED’s appeal on 14 March 2025 [2025] EWCA Civ 250.