UK: Unfair Dismissal: Misconduct
Authors: Stephen Miller, Corinna Harris, and Sophie Jackson
Court of Appeal decision provides a reminder of key principles of fair dismissals for misconduct.
Mr Hewston was employed as a school inspector by Ofsted. He had 12 years’ service and a clean disciplinary record. During a school inspection visit, Mr Hewston brushed rainwater off the head and touched the shoulder of a pupil who had come in from a PE lesson in the rain. This made the pupil feel uncomfortable.
The school reported the incident to Ofsted and the local authority for safeguarding. No safeguarding concerns were found by the local authority. During a disciplinary process that followed, Mr Hewston’s position was that his actions were a gesture of care for the child and the incident had been blown out of proportion. He did not accept that his conduct amounted to gross misconduct and thought the school had been looking for a reason to pick on an inspector.
Ofsted dismissed Mr Hewston for misconduct and loss of trust and confidence with immediate effect, even though there was not a ‘no touch’ policy and Mr Hewston had no prior guidance or training on acceptable physical contact. Mr Hewston claimed unfair and wrongful dismissal.
The Employment Tribunal found that Mr Hewston’s dismissal had been fair, concluding that Ofsted’s investigation was reasonable and Mr Hewston’s conduct undermined trust and confidence.
Mr Hewston appealed to the Employment Appeal Tribunal (EAT). The EAT concluded that Mr Hewston had been unfairly dismissed as it would not have been obvious to Mr Hewston that he could expect to be dismissed for touching the pupil in the way he did, and the lack of a ‘no touch’ policy or training on physical contact meant his dismissal was unreasonable.
Ofsted appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and agreed with the EAT’s conclusion. It emphasised that Mr Hewston’s actions were not of a kind that he should reasonably have anticipated as warranting dismissal.
Key Action Points for Human Resources and In-house Counsel
The case is a reminder for employers to ensure a fair disciplinary procedure is followed and their response is fair and proportionate in cases of alleged misconduct. This is especially so where the conduct concerned does not raise safeguarding issues or breach the employer’s written policies.
This case offers a reminder of the need for clarity in disciplinary policies around what can amount to misconduct or gross misconduct. Although employers are not required to have an exhaustive list of what will about to misconduct, an Employment Tribunal will consider whether an employee could reasonably have been expected to understand that their behaviour would amount to gross misconduct.
This case also demonstrates the importance for employers that work with children or vulnerable adults to have clear written policies and training for employees on the standards expected of any interactions that they may have with those individuals.
Finally, the case is a reminder of the need to avoid relying on an employee’s lack of remorse as a reason for dismissal or justifying a more serious disciplinary sanction without evidence of there being a risk of future misconduct. In this case, the Court noted that the risk of future inappropriate conduct by Mr Hewston was remote, especially given he had expressed willingness to undergo training.
