The Court of Appeal has recently delivered its judgment in Hewston v Ofsted [2025] EWCA Civ 250 that an Employment Tribunal was wrong to find an Ofsted inspector’s dismissal to be fair due to brushing rainwater out of a child’s hair and patting them on the shoulder. This decision illustrates the difficulty for employers that work with children of 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 an Ofsted Inspector with over 12 years of service and had a clean disciplinary record. In October 2019, Mr Hewston brushed rainwater off the forehead of a 12-year-old boy returning from a rainy PE lesson and placed a hand on the boy’s shoulder in a gesture meant to be sympathetic. Following the incident, the school submitted a complaint to Ofsted and to the local authority designated officer for safeguarding, stating that the physical contact was inappropriate and made the child feel uncomfortable.

Ofsted undertook a disciplinary process. During his disciplinary hearing, 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. He maintained that the school had been looking for a reason to pick on an Ofsted inspector and had it blown out of proportion. 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 damaging trust in his judgment, thereby bringing Ofsted into disrepute.

Tribunal Findings:

An Employment Tribunal dismissed Mr Hewston’s claim for unfair dismissal, holding that Ofsted had conducted a fair and reasonable investigation, and had formed a reasonable belief that his actions undermined Ofsted’s trust and confidence in his abilities and this amounted to gross misconduct.

The Employment Appeal Tribunal allowed Mr Hewston’s appeal, finding that he had been unfairly dismissed as his dismissal was substantively and procedurally unfair:

• Substantive unfairness: It would not have been obvious to Mr Hewston that he could have expected to 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.
• Procedural unfairness: Mr Hewston had not been shown the local authority designated officer response, the school’s complaint letter or the pupil’s statement during the disciplinary proceedings. Mr Hewston had been denied the opportunity to fully understand and respond to the allegations against him.

The Court of Appeal Decision:

The Court of Appeal unanimously dismissed Ofsted’s appeal and agreed with the Employment Appeal Tribunal’s conclusions on substantive and procedural unfairness. In particular, it was raised how could it ever be reasonable for an employer to increase the seriousness of conduct that is not itself capable of justifying dismissal because an employee fails to show proper contrition or insight as alleged by Ofsted, which was claimed. There had never been any suggestion of any improper motivation on the part of Mr Hewston and therefore his actions were not of a kind that he should reasonably have anticipated as warranting dismissal.

Lessons for Employers:

What we can take from this judgment is the importance of clear policies, procedures, guidance and training for employees on defining acceptable professional boundaries with children. Employers should ensure that these policies are in place and provide clear guidance on what constitutes misconduct or gross misconduct to provide clarity for its employees. This case also serves as a reminder for employers to follow fair disciplinary procedures and respond proportionately when alleged misconduct arises.

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.