By Neil Guss Regional Employment Rights Manager &
James Tinston Employment Rights Lawyer
Overview
This case looked at whether an Ofsted inspector was fairly dismissed for brushing water off a child’s head during a school inspection. The Court of Appeal upheld earlier decisions that the dismissal was both procedurally and substantively unfair, offering important reminders about due process, fair notice of rules, and the limits of relying on “loss of trust” or “reputational harm” to justify dismissal.
Background
Mr Hewston had worked as an inspector for Ofsted for over a decade without any disciplinary issues. In October 2019, during a rainy school visit, he briefly brushed water off a student’s head and shoulder—a gesture he said was meant kindly. The school reported the incident to the Local Authority Designated Officer (LADO), who suggested it be dealt with through internal training. Nevertheless, Ofsted launched disciplinary proceedings and dismissed Mr Hewston for gross misconduct.
Although Ofsted accepted there was no safeguarding concern, they said the physical contact was “inappropriate” and a serious lapse in professional judgment. They also cited reputational risk and a supposed lack of remorse when Mr Hewston maintained that he had done nothing wrong, even though he said he wouldn’t repeat the action because of the trouble it had caused.
Tribunal and Appeal Decisions
- Employment Tribunal: The tribunal dismissed Mr Hewston’s claims, holding that the dismissal fell within the range of reasonable responses—even though it acknowledged that a lesser sanction and additional training might have been more suitable.
- Employment Appeal Tribunal (EAT): The EAT overturned the tribunal’s decision, ruling the dismissal was both substantively and procedurally unfair.
- Substantive Unfairness: It wasn’t reasonable to expect Mr Hewston to know he could be dismissed for such an act, especially given Ofsted had no “no-touch” policy, no training on appropriate physical contact, and had never suggested that the incident raised a safeguarding concern.
- Procedural Unfairness: Ofsted failed to share key documents—most notably, the pupil’s own statement—which differed in tone from the school’s version. Withholding it denied Mr Hewston a fair opportunity to respond to the allegations.
3. Court of Appeal: The Court of Appeal upheld the EAT’s findings. It warned against vague disciplinary charges and criticised Ofsted for failing to explain exactly what Mr Hewston had done wrong. It also stated that reputational risk and a loss of trust can’t be used as catch-all justifications for dismissal unless based on genuinely serious misconduct. The court further criticised the dismissal process for failing to give Mr Hewston a fair chance to defend himself with all the evidence.
Key Takeaways
- Lack of guidance weakens misconduct claims: Employers must give staff clear rules and training if they expect to dismiss someone for breaking them—especially in sensitive areas like safeguarding or physical contact.
- Dismissal must be a proportionate response: A momentary lapse in judgment without malicious intent or harm does not necessarily justify dismissal, especially for long-serving staff.
- Trust and reputation can’t replace proper reasons: Employers cannot rely on vague ideas of reputational risk or trust if the underlying conduct doesn’t justify dismissal.
- Transparency in investigations matters: Failing to share key evidence with an employee can render the whole process unfair—even if the facts are broadly agreed.
