The Court of Appeal has recently considered this in the case of Hewston v Ofsted.
Mr Hewston was an Ofsted inspector who, during a rainy school inspection, brushed rainwater of the head and shoulder of a sodden child as they returned from the playground. The school reported Mr Hewston to the local authority safeguarding officer, who in turn got in touch with Ofsted, on the basis that Mr Hewston’s behaviour was inappropriate and had made the child feel uncomfortable. The local authority asked Ofsted to investigate “with consideration to raising awareness of professional boundaries and any training that may be required in support of this”.
No concerns were ever raised that Mr Hewston’s conduct posed a safeguarding risk, and Ofsted did not have any policies in place stating that inspectors should not touch pupils. Ofsted investigated matters and dismissed Mr Hewston for misconduct and “the resultant loss of trust and confidence”.
Mr Hewston brought a claim of unfair dismissal, which was unsuccessful at the employment tribunal. The tribunal held that Mr Hewston’s conduct undermined the trust and confidence Ofsted expected from their inspectors and that Ofsted was reasonable in its belief that Mr Hewston’s actions amounted to gross misconduct.
The Employment Appeal Tribunal (EAT) overturned that finding, and held that Mr Hewston’s dismissal was unfair. The EAT found that the Tribunal had failed to consider the fact that Ofsted did not have a policy stating that inspectors were not to touch pupils in any way, and had not otherwise warned Mr Hewston in advance that such conduct could amount to gross misconduct.
Ofsted appealed to the Court of Appeal on the basis that a key factor in the decision to dismiss Mr Hewston was that he had always maintained that he had done nothing wrong and had demonstrated a lack of remorse.
The Court of Appeal placed weight on the fact that Mr Hewston’s actions did not have improper motives; he was attempting to brush rainwater from a child in an act of sympathy. The Court stated that it would not normally be fair to dismiss an employee for an act they could not reasonably expect their employer to regard as serious misconduct. Therefore, the EAT had been right to find that the absence of any policy or other statement stating that such conduct was unacceptable meant that Mr Hewston’s dismissal was unfair.
The Court also considered Mr Hewston’s lack of remorse and whether this, combined with the misconduct itself, meant that dismissal could be in the reasonable range of responses. Ofsted argued that Mr Hewston’s lack of contrition had meant that it had lost trust and confidence in Mr Hewston, as they could not be sure that he would not do something similar in the future.
The Court held that it was hard to see how it could be reasonable for an employer to bump up the seriousness of the conduct only because the employee failed during the disciplinary process to show remorse. However, there could be cases of less serious misconduct where an employee’s persistent failure to recognise they have done wrong could mean that there is a real risk they will commit more serious misconduct in the future, and that could in principle justify dismissal in some cases, although that was not the case here.
Conclusion
The Court of Appeal held that Mr Hewston’s lack of remorse for brushing rainwater off a child was not sufficient to bring dismissal within the range of reasonable responses, and therefore his dismissal was unfair.
A lack of contrition during the disciplinary process does not ordinarily mean that it will be reasonable to dismiss an employee for less serious misconduct. However, the Court was clear that there could be circumstances where a persistent lack of contrition could impact the trust and confidence that the employer has in an employee, in particular that it could indicate that the employee could carry out future acts of more serious misconduct.
This case also reminds employers of the importance of ensuring that they have clear policies and codes of conduct detailing behaviour which they considers not to be acceptable. Ofsted’s position may have been stronger, had it had clear guidelines setting out that inspectors could not have any physical contact with pupils at all during inspections and which detailed the possible consequences of breaching those parameters.
Rebecca Berry