Background
Mr Hewston had been employed as a school inspector by Ofsted since 2007. In 2019, while conducting an inspection at a school with which Ofsted had a strained relationship, he brushed water off the forehead of a 12-year-old pupil and placed a hand on the child’s shoulder after they had come in from the rain. The pupil reported feeling uncomfortable, and the school escalated the incident to both Ofsted and the local authority designated officer (LADO).
The LADO reviewed the matter and advised Ofsted to investigate, potentially with a view to offering further training. However, following a disciplinary process, Ofsted dismissed Mr Hewston for gross misconduct. The dismissal letter made clear that he was not considered a safeguarding risk and had not caused harm, but stated that he had brought the organisation into disrepute and had not shown sufficient insight or remorse to reassure them that such conduct would not recur.
An employment tribunal rejected Mr Hewston’s unfair dismissal claim, finding that Ofsted had acted within the range of reasonable responses. However, the Employment Appeal Tribunal (EAT) overturned that decision, holding that the dismissal had been both substantively and procedurally unfair. Ofsted appealed.
The Court of Appeal dismissed Ofsted’s appeal, upholding the EAT’s decision.
On the substantive fairness of the dismissal, the court agreed with the EAT that the lack of a “no touch” policy or relevant training was a significant factor. It was not reasonable to expect Mr Hewston to foresee that his conduct, intended as a benign, sympathetic gesture, might result in dismissal. The court emphasised that common sense must apply: absent improper motivation or safeguarding concerns, it is not generally fair to dismiss an employee for conduct they could not reasonably expect to be treated as gross misconduct.
On the question of remorse, Ofsted argued that the dismissal was not just about the touching, but also Mr Hewston’s failure to acknowledge fault. The court disagreed, finding that his willingness to say he would not repeat the conduct, and to undertake training, was a sufficient and appropriate response, regardless of whether he fully accepted wrongdoing. A lack of contrition, the court held, does not necessarily elevate otherwise low-level misconduct to a dismissible offence.
The court also upheld the EAT’s finding of procedural unfairness, as Mr Hewston had not been provided with key documents during the disciplinary process, including the pupil’s statement, the school’s complaint letter, and the LADO’s response. These documents were potentially relevant to his defence and to his suggestion that the complaint may have been influenced by the school’s animosity towards Ofsted.
This decision is a reminder to employers that disciplinary outcomes must be grounded in clear policies, supported by training, and proportionate to the conduct in question. While some actions will obviously justify dismissal, others may require guidance or retraining, particularly where there is no prior warning and no safeguarding breach.
The judgment also confirms that an employee’s perceived lack of remorse should not be used to amplify the seriousness of the underlying conduct unless it genuinely signals an ongoing risk. Finally, the case highlights the importance of procedural fairness, including disclosure of relevant documents, even where the underlying facts are largely undisputed.