When deciding whether a dismissal is fair, tribunals have to take a number of factors into consideration. In Hewston v Ofsted, the EAT held that these must include an assessment of whether the employer made clear to their employee that a single instance of a certain type of misconduct would result in their dismissal.
Mr Hewston’s union, Unison, instructed Thompsons to act on his behalf.
Basic facts
Mr Hewston, a school inspector for Ofsted, was carrying out an inspection visit with a colleague when a group of school children came in from the rain. He brushed rainwater off the hair or forehead of one of the children and put his hand on the child’s shoulder. Following a complaint from the school, he was suspended.
Ofsted also reported the matter to the Local Authority Designated Officer (LADO) who concluded that it should be investigated internally with a focus on “raising awareness of professional boundaries” along with any training that might be needed to facilitate this.
After an investigation, Mr Hewston was dismissed without notice for gross misconduct on the basis that he was guilty of a fundamental breach of the duty of trust and confidence. He brought claims of unfair and wrongful dismissal.
Tribunal decision
Although the tribunal considered that a sanction falling short of dismissal might have been more appropriate, it concluded that the decision to dismiss him was within the range of reasonable decisions open to Ofsted as the procedures it had followed were fair and Mr Hewston was afforded a fair appeal.
With regard to the claim for wrongful dismissal, the tribunal held that Ofsted had reasonably considered that Mr Hewston’s conduct amounted to the breach of an essential term of his contract and was, therefore, entitled to dismiss him without notice.
Mr Hewston appealed, arguing (among other things) that none of Ofsted’s policies made clear that a single instance of physical touch might lead to dismissal. With regard to the claim of wrongful dismissal, he argued that instead of coming to its own conclusion, the tribunal had adopted his employer’s view that his conduct amounted to a fundamental breach.
EAT decision
With regard to the unfair dismissal appeal, the EAT held that the tribunal was wrong to underplay the fact that Mr Hewston had not been “forewarned, by a written policy, training or otherwise” that a single incident of physical contact (which had not prompted any safeguarding concerns) could result in his dismissal. Although it should be obvious that some types of conduct would result in dismissal, others would not. This was one of them.
It was also unfair that Ofsted had not given certain documents – the complaint from the school, the statement from the child and the report from the LADO - to Mr Hewston despite the fact that the dismissing officer had relied on them when coming to her decision. Given these facts, the EAT substituted its conclusion that the dismissal was unfair.
In relation to the wrongful dismissal appeal, the EAT held that the tribunal had failed to make a clear finding that it had objectively considered the evidence leading to the decision that Mr Hewston’s conduct amounted to a repudiatory breach. Nor had it made clear why that might be the case. It, therefore, quashed that decision as well.
The EAT remitted the wrongful dismissal complaint for reconsideration to a different tribunal and to determine remedy for unfair dismissal.