Hewston v Ofsted [2025]: key employer considerations

The Court of Appeal has recently delivered its judgment in Hewston v Ofsted [2025] EWCA Civ 250 that an Employment Tribunal (‘ET’) was wrong to find an Ofsted inspector’s dismissal to be fair due to brushing rainwater out of a pupil’s hair and patting them on the shoulder. This decision illustrates the difficulty and considerations that employers that work with children have when it comes to disciplining employees for potentially problematic interactions with children, without having clear policies and procedures governing those interactions or appropriate training in place.

Background

Mr Hewston was employed as a school inspector by Ofsted and had been employed since 2007, with a clean disciplinary record. In 2019 he attended an inspection at a school where he brushed rainwater off the forehead of a 12-year-old boy returning inside from a rainstorm and placed a hand on the boy’s shoulder in a gesture that was meant to be sympathetic. Following the incident, the school submitted a complaint to Ofsted and to the local authority designated officer (‘LADO’) for safeguarding, stating that the physical contact was inappropriate and made the child feel uncomfortable.

Following this report made, Ofsted undertook a disciplinary process during which, Mr Hewston maintained that the incident did not amount to gross misconduct but stated he would not repeat it due to the stress it had caused. He also expressed willingness to undergo training, however, Ofsted dismissed Mr Hewston for gross misconduct. The reasoning was that he had failed to exercise good judgment during the visit, allegedly breaching professional standards and bringing Ofsted into disrepute due to his judgment.

The Initial ET Decision

In the initial instance, the ET dismissed Mr Hewston’s claims and held that,  whilst there wasn’t a ‘no touch policy’ in place, and though no harm had been intended, Mr Hewston’s conduct had been inappropriate. The fact that he had not viewed his conduct as such had resulted in a fundamental loss of trust and confidence. He should have been aware of the consequences of inappropriate touching. Ofsted had subsequently reasonably and fairly, dismissed him following their disciplinary process, for gross misconduct and in particular because his actions undermined the trust and confidence that it was entitled to expect to have in his ability to perform his job as an inspector. However, the ET also acknowledged that a sanction falling short of dismissal, such as further training, may have been appropriate in the circumstances.

Employment Appeal Tribunal

Following this outcome, Mr Hewston appealed to the Employment Appeal Tribunal (‘EAT’) where the initial decision was overturned. It was held that Mr Hewston had been unfairly dismissed and the ET’s finding on wrongful dismissal was quashed and the matter was remitted back to the ET for determination.

The EAT’s reasoning for upholding the claim of unfair dismissal was that it had not been obvious to Mr Hewston that he could expect to be dismissed for touching a pupil in this manner. In addition, the school did not have a ‘no touch’ policy or any such policy which would make clear that this action would amount to gross misconduct, there did not appear to be any safeguarding issues and Mr Hewston had not undergone any relevant training.

The dismissal was also found to be procedurally unfair as key documentation had not been shared with Mr Hewston during the disciplinary process, such as the LADO response, the school’s complaint letter or the pupil’s statement during the disciplinary proceedings. .

Court of Appeal

Ofsted appealed this outcome, however, the Court of Appeal unanimously dismissed this appeal and agreed with the EAT’s conclusions on substantive and procedural unfairness. In particular, failure of contrition or insight does not allow the employer to increase or ‘bump up’ the seriousness of the conduct.  Furthermore, if a particular act is not listed as an example of gross misconduct in the employer’s policies, an employer must consider whether the employee could reasonably be expected to know that the act will be treated as serious misconduct. The Court of Appeal found that in this case, it was not reasonable to expect Mr Hewston to realise his conduct would result in dismissal, due to the absence of a ‘no touch’ policy and lack of training. There had never been any suggestion of any improper motivation on the part of Mr Hewston, the incident did not raise any safeguarding issues and therefore his actions were not of a kind that he should reasonably have anticipated as warranting dismissal.

Key Considerations for Employers:

Following this outcome, we have set out some key considerations that employers should bear in mind when conducting disciplinary processes:

·       Any examples of gross misconduct set out in relevant policies should be carefully thought about and included appropriately. Although the list does not need to be exhaustive, an  ET will consider whether the employee could have reasonably regarded their behaviour to amount to gross misconduct;

·       The fact that an employee does not show ‘insight’ or ‘contrition’ or accept that their behaviour constitutes misconduct will not always be sufficient to increase the seriousness of an allegation. There may be instances where this may be relevant, for example if there was a real risk of serious misconduct in the future, however ultimately the weight given to this will depend on the circumstances of the case;

·       This case further serves as a reminder for employers to ensure a fair disciplinary procedure is followed and responses are proportionate when alleged misconduct arises. If there are records and documents which form the basis of the allegation brought against an individual, it is good practice to show these unless there is a good reason not to do so.

·       For any organisations that works with pupils or vulnerable adults, it will be essential to clearly set out the standards expected of any interaction staff may have with those individuals, and follow this up with appropriate training.