Andrew Hewston v Ofsted

In a conduct dismissal under the Employment Rights Act 1996, the tribunal must decide for itself whether it was reasonable to treat the conduct as sufficient for dismissal. The range of reasonable responses approach does not require perversity. General disciplinary standards may not provide fair notice that a particular act may lead to dismissal, although explicit rules are not essential where the conduct is inherently or unambiguously serious. An employee’s lack of contrition or insight cannot generally make otherwise insufficient conduct sufficiently serious, although it may matter where it demonstrates a real risk of future serious misconduct. Loss of trust and confidence is not a substitute for assessing the seriousness of the conduct. Procedural fairness ordinarily requires disclosure of contemporary complaints relied on by the dismissing officer.

An experienced Ofsted inspector was summarily dismissed after brushing rain from a pupil’s forehead and touching his shoulder during a school inspection. Ofsted treated the conduct as gross misconduct, although it had no no-touch policy and did not allege a safeguarding risk.

The Employment Tribunal dismissed claims of unfair and wrongful dismissal. The Employment Appeal Tribunal allowed the appeal, finding the dismissal substantively and procedurally unfair, and remitted the claims: [2023] EAT 109. Ofsted appealed only in relation to unfair dismissal.

The central issues were whether the absence of specific notice made dismissal unfair, whether the inspector’s attitude during the disciplinary process could justify dismissal, and whether withholding complaint materials was procedurally fair.

The appeal was dismissed. The Court of Appeal upheld the EAT’s finding that the dismissal was unfair.

1. Statutory approach. Under the Employment Rights Act 1996, the employer must establish an admissible reason for dismissal, here conduct. The tribunal must then decide whether the employer acted reasonably in treating that conduct as sufficient for dismissal, having regard to the circumstances, equity and the substantial merits. The range of reasonable responses approach does not require the tribunal to find unfairness only where the employer’s decision was perverse. Foley v The Post Office [2000] ICR 1283 was followed.
2. Substantive fairness. It will not normally be fair to dismiss for an act which the employee could not reasonably expect the employer to regard as serious misconduct. Published examples of gross misconduct are not exhaustive. The question depends on the nature of the act and its surrounding circumstances. The absence of a no-touch policy was not decisive, but the conduct here was not inherently or unambiguously dismissal-level misconduct. The general standards relied on by Ofsted did not give fair notice that this particular, well-meaning touch might attract dismissal.
3. Subsequent attitude. Where the substantive conduct is not itself sufficiently serious, an employer cannot generally increase its seriousness merely because the employee lacks contrition or insight. In an appropriate case, persistent failure to recognise wrongdoing may indicate a real risk of more serious future misconduct and may justify dismissal. This was not such a case: Ofsted did not regard the claimant as a risk to children, his assurance that he would not repeat the conduct was plausible, and he was willing to undertake training.
4. Procedure. Although consideration of the procedural ground was unnecessary, fairness ordinarily required disclosure of the pupil’s statement, the school’s complaint and the LADO’s report, subject to appropriate redaction. The documents could have enabled the claimant to challenge the asserted seriousness and reliability of the complaint. The EAT was also entitled to find unfairness itself where, applying Jafri v Lincoln College [2014] EWCA Civ 449, the ET would have been bound to reach that conclusion.
5. Additional observations. Warby LJ considered that the disciplinary charge failed to identify the gist of Ofsted’s criticism. Loss of reputation could be relevant, but could not provide a stand-alone basis for dismissal or compensate for an unclear charge.

• Court of Appeal (Civil Division) [2025] EWCA Civ 250: Ofsted’s appeal against the finding of unfair dismissal was dismissed.
• Employment Appeal Tribunal [2023] EAT 109: the claimant’s appeal was allowed. The dismissal was found unfair, the unfair-dismissal claim was remitted for remedy, and the wrongful-dismissal decision was quashed and remitted.
• Employment Tribunal: claims for unfair and wrongful dismissal were dismissed.