An Ofsted inspector was found to be unfairly dismissed following a single incident of contact with a pupil. The Court of Appeal has provided a useful reminder for employers about some of the well-established principles which will apply in conduct dismissals.

OFSTED v Hewston [2025] EWCA Civ 250 concerned the dismissal of Mr Hewston, an OFSTED inspector with an unblemished disciplinary record who was summarily dismissed following an incident where, during an inspection, he brushed rainwater from the head of a pupil and lightly touched his shoulder when asking if he was okay.

Following a complaint from the school where this happened, OFSTED instigated disciplinary proceedings against Mr Hewston.

Although OFSTED did not have any written policies which prohibited contact with pupils, and the disciplinary policy did not list this as an example of misconduct (or gross misconduct), the dismissing officer believed the Claimant was experienced enough to understand that his conduct was inappropriate and would be deemed as gross misconduct by his employer.

Throughout the disciplinary proceedings, the Claimant argued that his conduct did not amount to gross misconduct. OFSTED interpreted this as demonstrating a lack of remorse, which contributed in part to their decision to dismiss him summarily. The Claimant appealed his dismissal, but the original decision was upheld.

The Claimant brought claims in the Employment Tribunal for unfair and wrongful dismissal, both of which were dismissed by the Employment Tribunal as they found that OFTED’s decision to dismiss fell within the band of reasonable responses.

On appeal, the Employment Appeal Tribunal (EAT) found that the dismissal had been both substantively and procedurally unfair. The EAT found that it would not have been obvious to Mr Hewston that he could be dismissed for touching a student in this manner. The incident raised no safeguarding issues, the employer did not have a “no touch” policy, and there had been no training on physical contact. During the disciplinary process, Mr Hewston was also not shown all of the evidence that was relied upon to support his dismissal and so he had been denied the opportunity to fully understand and respond to the allegations against him.

OFSTED appealed the EAT’s finding of unfair dismissal, and the Court of Appeal upheld the EAT’s decision that the dismissal was unfair. When delivering its judgment, the Court of Appeal provided the following reminder for employers dealing with conduct dismissals:

• Examples of gross misconduct will usually be found in disciplinary policies; however, if an example is not listed in the policy, this does not mean an employer is prevented from relying on it as a reason for dismissal;
• If the example is not listed in the policy, then a crucial issue for fairness is considering whether the employee could reasonably have expected the employer to regard the act as serious misconduct;
• An employer cannot ‘bump up’ the seriousness of an employee’s conduct, otherwise not capable of justifying dismissal, just because the employee fails to show remorse;
• Whilst loss of trust and confidence and risk of reputational damage to the employer can be relevant factors when deciding on a disciplinary sanction, they cannot be the sole reason for such a decision; there must be at least some misconduct; and
• Employees should be provided with copies of all documents relating to the disciplinary process before the employer reaches a decision.

A reminder for employers

This judgment highlights the importance of clear policies, procedures, guidance and training for employees about what constitutes misconduct or gross misconduct. Whilst lack of remorse can be relevant for determining a suitable sanction, this alone cannot be relied upon to inflate allegations from misconduct to gross misconduct.

This case also serves as a reminder for employers to follow fair disciplinary procedures and respond proportionately when alleged misconduct arises.

If you have any queries on this case, or other employment related matters, please do not hesitate to contact Natalie Hami Dindar.