After an OFSTED inspector was dismissed for briefly touching a pupil’s head to wipe away some rain, the Employment Appeal Tribunal (EAT) has ruled that the dismissal was unfair due to a lack of disciplinary guidance and/or training. Compensation for unfair dismissal will be awarded at a later date.
The case (Hewston v OFSTED) highlights how important it is for employers to have set disciplinary guidance as well as training on when what conduct may be deemed gross misconduct in their workplaces, as well as when it may result in summary dismissal. As such conducts will have severe consequences, employees are entitled to be made fully aware of them so to comply with employers’ policies and procedures.
Keep reading to find out why the Employment Appeal Tribunal repudiated the decision made by the employment tribunal, and to learn more about why employers should have clear disciplinary rules and training to avoid complications further down the line.
The case originates with an OFSTED inspector, Mr Hewston, who was visiting a school for an inspection. Mr Hewston, the claimant had worked as an OFSTED Inspector for 12 years and had an unblemished career up until that point.
After a group of children came back inside from the rain, the claimant, Mr Hewston, wiped some rain that was dripping down a child’s head and lightly brushed the rain off the top of the child’s shoulder. A teacher who spotted the incident then raised concerns that the behaviour by the inspector was inappropriate.
A report that was filed said that as well as one teacher feeling it was inappropriate, the student looked uncomfortable and embarrassed and completed an incident form due to the fact it happened without permission. Following a disciplinary process, the claimant was dismissed for gross misconduct.
This decision came despite the respondent (OFSTED) accepting that Mr Hewston had not intended to harm the pupil and that it did not give rise to any safeguarding risks. It was also noted that the claimant had a clean disciplinary record over his 12 years of service.
OFSTED had not provided training to staff on what constituted as inappropriate touching, nor did they have disciplinary rules in place which specifically defined what inappropriate touching consisted of. Prior to the dismissal of the claimant, he was not provided with the complaint of either the student or the school.
The dismissal of the claimant led to him filing a claim to the Employment Tribunal for unfair and wrongful dismissal. Mr Hewston stated that he did not believe he had acted unprofessionally, instead stating that “brushing rain from the forehead was professional in the sense that it was caring”. However, both of the claims for unfair and wrongful dismissal were dismissed by the Employment Tribunal.
The claimant then appealed in relation to both outcomes. His claim was supported by his trade union, UNISON, who had severe concerns about the implications of the case for their members.
The decision by the Employment Appeal Tribunal concluded that the employment tribunal had made several serious errors in relation to both substantive and procedural unfairness.
In particular, the tribunal erred when it came to failing to adequately considering the fact that the claimant had not been forewarned that his behaviour in the form of physical contact was tantamount to dismissal from his position. This forewarning could have come in the form of training or a written policy indicating that physical contact of this sort was not acceptable.
The tribunal also made a mistake by failing to recognise that it was a mistake not to provide the claimant with three documents: the text of the school’s complaint, the text of the child’s statement, and an email recording the view of the Local Authority Designated Officer. All three documents were relied upon by the dismissing officer, but only the school’s complaint was provided to Mr Hewston at the appeal stage. According to the EAT, this was enough to render the dismissal procedurally unfair.
Finally, the tribunal also failed to take into account whether the respondent had considered the long and unblemished service record of the claimant. The fact that Mr Hewston had relied on this during the disciplinary process means that this represents an oversight by the tribunal itself.
The EAT substituted its own judgment for that of the Employment Tribunal’s concluding that if the tribunal had properly directed itself on the law, it would also have found the claimant was unfairly dismissed.
This case is a reminder of the importance of following a robust disciplinary process for each misconduct allegation. Employers should not retrospectively enforce self-defined standards or impose disciplinary action without first making employees aware of what the consequences of misconduct are, particularly in this case, where the consequences for the misconduct was dismissal of the employee.
With this in mind, the case highlights the need for OFSTED to make clear when the use of touch is inappropriate. It should have provided training to its inspectors or set out clear disciplinary rules which would have made the claimant aware of his responsibilities around the use of touch. These were sorely lacking for an organisation whose inspectors come into contact with children on a regular basis.
Nevertheless, employees working with children should be mindful of the consequences of unwarranted and non-consensual physical contact. For teachers and other staff employed by schools, their employer will usually have policies which make it clear whether the use of touch is appropriate. In situations where this is not obvious, employees should err on the side of caution.
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