Case Law Update: Single Incident Was Not Sufficient to Warrant a Dismissal of a School Inspector

On 14 March 2025 the Court of Appeal gave judgment on the case of Hewston v Ofsted and held that an employment tribunal had been wrong to find that a school inspector’s dismissal for a single incident of physical contact with a pupil was fair in the absence of a clear written policy, or any training on the matter itself.

Background to the case

Mr Hewston had over 12 years’ service with Ofsted and held a clean disciplinary record. During a school inspection visit in 2019 he had brushed rainwater off the forehead of a child who had come in from a PE lesson in the rain. Mr Hewston had also placed his hand on the child’s shoulder and asked if he was ok, in a gesture that was to be intended as sympathy and assistance.

Following the incident, the school complained to Ofsted and the Local Authority Designated Officer (LADO) that the conduct was inappropriate and had made the child feel uncomfortable. The LADO read the pupil’s statement of the incident and advised Ofsted to investigate internally with a focus on raising awareness of professional boundaries and training needs. As a result, the school sent a lengthy complaint letter to Ofsted about the inspection and the incident alleging that Mr Hewston had put the safety of a student at risk.

During Mr Hewston’s disciplinary hearing, Mr Hewston stated that, although he did not consider the incident fell within the definition of gross misconduct, he would not do it again because of the stress it had caused, and would happily undergo training. Ofsted perceived this as a lack of remorse on the part of Mr Hewston.

Mr Hewston was eventually dismissed for gross misconduct and loss of trust and confidence. The dismissal letter stated that Mr Hewston was not a risk to children and had not done anything that would amount to harm to a child or a safeguarding breach. The letter further stated that Mr Hewston had brought Ofsted into disrepute through a ‘grave error of judgment’ and had shown no remorse. Therefore, Ofsted said that Mr Hewston had not satisfied them that he would not do something similar in the future.

It is worth noting that Ofsted did not have a policy prohibiting physical contact with a child, or any disciplinary rules, which defined what use of touch would be deemed to be misconduct. It also transpired that Ofsted had not given their employees guidance on this subject.

This claim went from the Employment Tribunal, the Employment Appeal Tribunal, and finally to the Court of Appeal.

What claims were made?

Mr Hewston issued claims against Ofsted for wrongful dismissal and unfair dismissal in the Employment Tribunal (‘ET’). These claims were dismissed by the ET who concluded that the dismissal had fallen within the band of reasonable responses open to a reasonable employer and, therefore, the dismissal had not been unfair.

The tribunal said that Ofsted had conducted a fair and reasonable investigation, and had formed a reasonable belief that Mr Hewston’s actions had undermined Ofsted’s trust and confidence in his abilities to carry out his job appropriately, and amounted to gross misconduct. The ET commented that it was not for the ET to substitute its own views for those of a reasonable employer in determining the fairness of dismissing Mr Hewston.

Following this judgment, Mr Hewston appealed to the Employment Appeal Tribunal (‘EAT’).

The EAT allowed Mr Hewston’s appeal and substituted its own conclusions that he had been unfairly dismissed on the basis that his dismissal had been both substantively and procedurally unfair. The EAT said that Ofsted failed to warn Mr Hewston of the consequences of such conduct and pointed out that the lack of a ‘no touch’ policy or training on physical contact with students meant the dismissal had been unreasonable.

Substantive fairness

The EAT held that Mr Hewston’s dismissal had been substantively unfair because it would not have been obvious to Mr Hewston that he could expect to be dismissed for touching a student in the manner that he did. It was concluded at the investigation stages that no safeguarding issues had been raised, and Ofsted had not had a no touch policy or provided relevant training to inspectors on this topic.

The EAT made the point of saying it was common sense that it will not normally be fair to dismiss an employee for an act which they could not reasonably expect the employer to regard as serious misconduct. In this case, although the conduct was not disputed, Mr Hewston had been given no parameters that would him to expect Ofsted to be able to class his conduct as misconduct.

Procedural fairness

The EAT held that Mr Hewston’s dismissal was procedurally unfair because he had not been shown the LADO response to the complaint, the school’s complaint letter sent to Ofsted, or the pupil’s statement about the incident during the disciplinary proceedings.

As a result of the EAT’s findings, Ofsted appealed to the Court of Appeal (‘CoA’) and argued that they had not properly taken into account that the reason for dismissal had not just been the touching incident, but it had also been because of his lack of contrition or insight during the disciplinary. However, the EAT found it difficult to determine how it was reasonable for an employer to be able to take conduct more seriously because of a lack of remorse. In this case, the EAT said the employee’s misjudgement in acting in the way he did was not of a kind that implied real risk of serious misconduct in the future.

Court of Appeal findings

The CoA dismissed Ofsted’s appeal and agreed with the EAT’s conclusion emphasising that Mr Hewston’s actions were not of a kind he should reasonably have anticipated as warranting a dismissal from his employment.

The CoA further went on to say that the disciplinary procedure had been unfair because of the failure to show Mr Hewston the key documents from the investigation, namely, the pupil’s statement, the school complaint letter to Ofsted and the LADO response to the complaint. The CoA said this was a failing because, where an employee was accused of misconduct against another person, it was good practice to show them records of that person’s complaint, unless there was good reason not to. This is a difficult line to tread when disclosing information of this nature. However, in this case the CoA held that Mr Hewston should have been shown this documentation and this counted against them as showing unfair procedure.

Throughout this process, Mr Hewston also had an alternative take on proceedings and had alleged that the motivation behind the complaint may have been down to the school’s existing animosity to Ofsted. It was clear that the relationship between Ofsted and the school was not a positive one and Mr Hewston believed that the school’s complaint letter and the pupil’s statement about the incident would have supported this position. However, Mr Hewston had been denied the opportunity to make these points during the disciplinary process because he was not able to view the relevant documentation during the investigation.

Key takeaways for employers

Set clear standards of conduct

Dealing with disciplinary matters involving problematic interactions with children or vulnerable adults is a challenging task, especially in the absence of clear standards governing those interactions and appropriate training.

There are clearly certain types of behaviour that employees working with children and vulnerable adults would be expected to understand would result in dismissal. Employers should ensure that those types of behaviour are clearly outlined in the relevant policy, and training given, if required.

Use dismissal letters to demonstrate fair reasoning

In addition, this case raised an important point in terms of the wording used in dismissal letters. The dismissal letter was taken into account when considering the reasonableness and the reasons for Mr Hewston’s dismissal. Dismissal letters should include the reason for the decision and, in cases where conduct is not serious enough to amount to gross misconduct, details of previous warnings that have pre-dated the dismissal to show that dismissal has been considered and actioned fairly. As an employer it is important to be able to demonstrate that alternatives to dismissal (if appropriate) have been explored and that dismissal is a last resort.

The tribunal will assess objectively whether a dismissal fell within the range of reasonable responses available to an employer in each set of circumstances. Whether or not a tribunal would have dismissed the employee is irrelevant and the Tribunal should not substitute their views for that of the employer. It is also important to note that, in misconduct cases, the dismissal of an employee for a first offence is likely to always be unfair if they have not previously received any warnings – save for a scenario of clear gross misconduct.

Implement clear written policies and provide training

One of the fundamental points raised in this case was the lack of policy and training on the part of Ofsted around physical contact and expectations of behaviour. If a clear policy had been in place to demonstrate expectations on Ofsted inspectors to give a clear picture of what could be considered misconduct (and whether physical touching was appropriate) the outcome of this claim could have been substantially different.

This emphasises the importance of having adequate policies and procedures in place for situations that would be classed as misconduct. Typically, a policy of this nature could be included within a wider staff handbook or code of conduct. It is reasonable for all employees to be clear on their boundaries and expectations of behaviour when performing their roles. It is also recommended that adequate training should also be put in place to support any policies and procedures and draw employees’ attention to these benchmarks and expectations.

Next steps for employers

• Review existing policies to ensure they cover sensitive or high-risk areas of conduct.
• Audit training programmes to ensure staff understand behavioural expectations.
• Check disciplinary procedures for transparency and fairness.
• Ensure decision-makers are equipped to record and explain their reasoning in dismissal cases.

How we can help

We offer a tailored policy review and implementation service to ensure your policies are both fit for purpose and work hand in hand with the operation of the organisation, and they are legally compliant with legislation and regulations. This may include an annual review process to keep policies current and aligned with best practice—providing clarity for staff and accountability for employers.

If you are interested in reviewing your policies or require an entirely new policy for your organisation, please get in touch with a member of the team.