The Court of Appeal has found in Hewston v OFSTED that the dismissal of an OFSTED inspector for a single incident was unfair.
Mr Hewston was an experienced OFSED inspector with a clean disciplinary record. During a school visit he
touched a pupil’s forehead to brush water off his face and shoulder because the child had been caught in
the rain.
The Court of Appeal gave a useful restatement of the principles applying to a conduct dismissal. Dismissing for misconduct is a potentially fair reason in the Employment Rights Act 1996 but the process needs to be carefully conducted to ensure fairness.
A first instance tribunal found that the dismissal was fair. Mr Hewston appealed to the Employment Appeal Tribunal who disagreed. The Court of Appeal upheld the EAT decision and found that the dismissal was unfair.
On the facts of this case touching a pupil was not listed as a gross misconduct offence. The Claimant could not reasonably have expected the Respondent to regard it as serious misconduct given the context of the incident – wiping water from a child’s face in a benevolent manner. Even if the inspector showed no
contrition for his action the seriousness of the conduct could not be “bumped up” to warrant dismissal.
The principles which the Court of Appeal restated are:
- It is a good idea to list acts that might be regarded as gross misconduct offences in disciplinary policies. Typical examples will include theft, violence, drug abuse. Some policies have long lists, others merely an indication of the types of conduct which might fall within the list. Inclusion of a thing in the list does not mean that an employer can automatically dismiss for it but neither does omission of an item mean that an employer cannot! Employers still have to think about the offence, the context, etc.
- If the act is unlisted it will be critical to the fairness of the dismissal to consider whether the employee could reasonably expect the employer to regard the act as a serious misconduct offence by reference to the act itself and the circumstances/context.
- Employers should not be able to “bump up” the seriousness of the conduct just because the employee shows no contrition.
- Reputational risk and loss of trust and confidence can be relevant factors in determining a disciplinary sanction but there must at least be some misconduct.
- Employees must be provided copies with all documents relating to the misconduct offence and the ensuing dispute, anything which is relevant to the disciplinary process, before any decision is reached. Procedural unfairness can impact the fairness of the decision.
If you are planning on taking disciplinary action against an employee you must fairly investigate the facts
and give the employee the opportunity to defend the charge and explain themselves.
If you are on the receiving end of disciplinary action take early legal advice so that you know your rights.
