When dismissing an employee for misconduct, employers must show the reason was fair and that dismissal was within the range of reasonable responses (section 98, Employment Rights Act 1996).
The Court of Appeal has upheld a decision that a school inspector’s dismissal for a single incident of non-harmful physical contact with a pupil was unfair.
Mr Hewston, an Ofsted inspector, brushed rainwater from a child’s hair and placed a hand on their shoulder during a school visit. The school complained, and despite no safeguarding concerns or allegations of improper intent, Ofsted summarily dismissed him for gross misconduct. The employment tribunal initially upheld the dismissal.
The EAT overturned that decision, finding that the conduct did not justify dismissal, especially in the absence of a “no touch” policy or relevant training. It also found the dismissal procedurally unfair, as key documents (including the pupil’s statement and the school’s complaint) had not been shared with Mr Hewston during the disciplinary process. The EAT substituted a finding of unfair dismissal.
The Court of Appeal dismissed Ofsted’s appeal. It confirmed that, in the absence of clear guidance or training, it was not reasonable to expect Mr Hewston to anticipate that his actions could lead to dismissal. It also rejected Ofsted’s argument that his lack of remorse could justify the outcome, noting that his willingness to avoid repeating the behaviour and undergo training was sufficient.
The judgment serves as a reminder that employers working with children must provide clear policies and training if they wish to enforce strict standards. Dismissal should not be treated as the default option in the absence of serious wrongdoing or safeguarding concerns.
Case
https://www.cooklawyers.co.uk/wp-content/uploads/2025/03/Ofsted-v-Hewston.pdf
