A Court of Appeal (CA) decision has reinforced key principles that employers must follow in conduct dismissals.

Mr Hewston was an experienced Ofsted inspector with an unblemished disciplinary record. Ofsted dismissed him for gross misconduct after brushing rainwater off a pupil’s head and lightly touching his shoulder. Although Ofsted acknowledged the act was not a safeguarding concern, it argued that he should have known better than to initiate such contact. The pupil’s school, which had a strained relationship with Ofsted, lodged a complaint following the incident citing serious concerns about this touching. It was stated that the student looked uncomfortable and embarrassed, commenting he was unhappy to another student. Mr Hewston’s manager subsequently removed him from inspection activity pending a case conference. Ofsted then suspended Mr Hewston and ultimately dismissed him.

The Employment Tribunal (ET) dismissed Mr Hewston’s unfair dismissal claim, reasoning that Ofsted had conducted a fair investigation, in line with its procedures, and had a reasonable belief that his actions undermined trust and confidence. The ET concluded that the decision was within the range of reasonable outcomes that Ofsted may have taken.

The Employment Appeal Tribunal (EAT) allowed Mr Hewston’s appeal and found that Ofsted had unfairly dismissed him. It found that the dismissal was substantively unfair as Ofsted had not made it clear to Mr Hewston that he could expect it to dismiss him for touching a student in this way. The EAT took into consideration that the employer did not have a “no touch” policy and there had been no training on the matter, so there was a lack of clear guidance on physical contact. Mr Hewston indicated that he was prepared to undergo training.

The EAT also held that the dismissal was procedurally unfair as Ofsted had not shown Mr Hewston a copy of the complaint letter or the pupil’s statement.

Ofsted appealed the EAT’s decision, but the CA unanimously dismissed the appeal stating that the EAT had clear reasoning for its decision. The court stated that it will not normally be fair to dismiss an employee for an act which they could not reasonably expect their employer to treat as serious misconduct.

Ofsted argued that the EAT erred in not taking sufficient account of Mr Hewston’s attitude, namely a lack of remorse. The court had difficulty in seeing how it could be reasonable to increase the seriousness of conduct due to an employee’s lack of contrition. In the circumstances, Mr Hewston’s misjudgement did not suggest that there was a real risk of serious misconduct in future. The court also held that Mr Hewston’s failure to acknowledge any misjudgement did not justify his dismissal.

You should provide an employee subject to a disciplinary process with any documents that are relevant to anything in dispute before reaching a decision on the outcome. You must give the employee an opportunity to address any issues raised by the documents.

Disciplinary policies often list examples of gross misconduct. If something is not listed, you should consider if you can reasonably expect the employee to have known that you would treat the conduct at issue as amounting to serious misconduct, taking into account the nature of the act and the surrounding circumstances.

Employers cannot regard any misconduct as more serious simply because the employee fails to show any remorse. A lack of remorse cannot justify dismissing an employee for misconduct that does not otherwise warrant dismissal.

A loss of trust and confidence and a risk of reputational harm can be relevant when an employer is deciding on disciplinary sanctions, but it cannot be a standalone basis for such a decision – there must at least be some misconduct.

Source: Lexology