Employers should consider the outcome of Hewston v Ofsted [2025] EWCA Civ 250 even if not actually in the education sector, particularly if work relates to children. This is a recent Court of Appeal decision relating to the conduct of an inspector on a school visit in which the appeal brought by Ofsted was dismissed.

Background 

Briefly, Hewston, the Claimant, was an Ofsted inspector. During a school inspection in 2019 an incident arose during which the Claimant briefly touched the forehead of a pupil and “the incident…(was) reported to OFSTED as a case of inappropriate touching.” After disciplinary proceedings, the Claimant was summarily dismissed for gross misconduct. It is important to this matter that there has never been any suggestion of any improper motivation, and the Court of Appeal discussed the use of the word ‘inappropriate’ in the complaint as potentially conveying a more serious allegation than intended. 

The Claimant brought claims in the Employment Tribunal for both unfair and wrongful dismissal - the claims were dismissed. The Claimant appealed to the EA. This appeal was allowed on the basis that it was not obvious to the Claimant that he should expect to be dismissed for behaviour of this kind (e.g. the mere touching of a child), there was not a ‘no touch’ policy - or indeed any other policy to make clear this action would amount to gross misconduct - at the school; there did not appear to be any safeguarding issues and no relevant training had been given. OFSTED appealed to the Court of Appeal in regards to the unfair dismissal claim. It was this appeal that was dismissed.

Per Lord Justice Warby, “The Claimant's dismissal was substantively unfair because OFSTED had failed to make it clear to him in advance that he would or might be dismissed for behaving in the way that he did.” OFSTED were unable to state what was wrong with the clients behaviour.

Employer considerations

Employers working with children will face issues disciplining employees, as this case highlights,  when there are problematic or potentially problematic interactions with children and there are no clear policies and procedures or appropriate training in place

When creating policies, employers should include carefully thought out and appropriate examples to be clear as to what level of behaviour might amount to gross misconduct. It should be clear so that an employee understands that what they did was so wrong that they should have appreciated that such a misjudgement might render them liable to dismissal. Not appreciating what they did wrong doesn’t automatically elevate the seriousness of misconduct. 

Employers should of course make sure a fair disciplinary procedure is followed. If alleged misconduct arises responses should be proportionate and good practice followed. Standards should be clearly set out and training given.

We are happy to assist with any other questions you might have. For more information please contact Kim Knox on KKnox@ortolan.com