News

14/03/2025

Court of Appeal hands down judgment in OFSTED v Hewston

News, Employment & discrimination

On 15 March 2025, the Court of Appeal gave judgment in the case of OFSTED v Hewston [2025] EWCA Civ 250, the parties having been informed at the conclusion of the hearing on 17 October 2024 that OFSTED’s appeal would be dismissed.

Underhill LJ’s lead judgment, supplemented by a brief concurring judgment of Warby LJ and some short remarks of Sir Launcelot Henderson, offers a helpful and authoritative restatement of familiar principles applying to unfair conduct dismissals. The judgment may prove useful in demonstrating the limits of an employer’s ability to rely an employee’s response to charges, a loss of trust and confidence or reputational harm where the underlying misconduct itself would not be sufficiently serious to justify dismissal.

Background

• Mr Hewston was employed by OFSTED as an inspector. He had over 12 years of service and a clean disciplinary record. During a school inspection visit, he brushed rainwater off the head of a Year 8 pupil who had come in soaking from a PE lesson in the rain, lightly touched the top of his shoulder and asked if he was ok. The school being inspected later wrote a long complaint to OFSTED about the inspection, referring to that incident among other things. OFSTED decided to institute disciplinary proceedings against Mr Hewston.
• The dismissing officer accepted that Mr Hewston’s conduct was not a safeguarding concern. However, she took the view that, as a senior and experienced inspector he should have known better than to initiate uninvited or unexpected physical contact with a student. OFSTED did not have a policy prohibiting physical contact with a child, nor any disciplinary rules which defined what use of touch would be deemed misconduct (or gross misconduct). It had not given its employees any guidance on the subject.
• Throughout the disciplinary process, Mr Hewston maintained that his conduct had been appropriate but said that he would not do anything of the kind again because of the trouble and stress it had caused him. The dismissing officer took this as evidence of a lack of contrition and remorse on Mr Hewston’s part. This was said to form part of her reasons for dismissing him summarily for the conduct.
• Mr Hewston also maintained throughout the disciplinary process that the school had been looking for a reason to pick on an inspector, given its animosity towards OFSTED, and that it had blown this out of proportion as a result.
• In reaching her decision, the dismissing officer had access to a copy of the pupil’s statement, the school’s letter to OFSTED, and the report of the local authority designated officer (‘the LADO’) who dealt with safeguarding complaints. Mr Hewston was only provided with the school’s letter and the LADO report before his appeal hearing. He was not provided with the pupil’s statement at all. The school’s complaint had glossed and exaggerated the pupil’s actual words to heighten the seriousness of the allegations.
• The decision to dismiss was upheld on appeal.
• Mr Hewston issued claims for wrongful and unfair dismissal claims in the employment tribunal. Those claims were dismissed by the tribunal, which concluded that his dismissal fell within the band of reasonable responses open to a reasonable employer. In a judgment authored by HHJ Auerbach, the EAT allowed Mr Hewston’s appeal and substituted its own conclusion that he had been unfairly dismissed, on the basis that his dismissal had been both substantively and procedurally unfair. The wrongful dismissal claim was remitted to the ET: Hewston v OFSTED [2023] EAT 109, [2023] IRLR 878.

The appeal

This was OFSTED’s appeal of the EAT’s judgment on unfair dismissal only.

On the substantive fairness ground, OFSTED said that the EAT had erred in treating the absence of published guidance or disciplinary rules on physical contact or touch as dispositive. Moreover, it had failed to appreciate that the conduct for which Mr Hewston was dismissed was both the substantive conduct and his insistence that he had done nothing wrong. Alternatively, it had given insufficient reasons for its decision on those points.

The Court of Appeal gave this short shrift. The EAT’s reasons were perfectly clear. It had correctly directed itself in asking whether it was reasonable for the dismissing officer to take the view, in the absence of published guidance or disciplinary rules, that Mr Hewston’s conduct was of a kind which he should have realised would warrant dismissal for a first-time offence.

As for the relevance of Mr Hewston’s attitude to his conduct, there might be some cases where it might be difficult to distinguish between the seriousness of the substantive conduct and the employee’s subsequent attitude to that conduct, and where dismissal might be justified because, for example, that attitude demonstrated a risk of further serious misconduct. This was not one of those cases. Generally, however, Underhill LJ opined that it would be hard to see how it could ever be reasonable for an employer to bump up the seriousness of conduct not itself capable of justifying dismissal because an employee fails to show proper contrition or ‘insight’ (see para 66). That would place an employee who seeks to defend themselves in disciplinary proceedings in an impossible position. On this point, Underhill LJ referred to his own recent remarks about the relevance of ‘insight’ to unfair conduct dismissals in Higgs v Farmor’s School [2025] EWCA Civ 109.

In a similar vein, Underhill LJ made some cautionary remarks about the reliance of a loss of trust and confidence, which his lordship opined “cannot justify dismissal for misconduct unless the employee has been guilty of conduct sufficiently serious to have justifiably had that effect. It should not be treated as a proxy for the test required by the statute” (at para 40). Similarly, although “reputational harm may be a relevant factor in reaching a disciplinary decision…it cannot be a stand-alone basis for such a decision; there must at least be some misconduct” (para 87).

As to procedural fairness, OFSTED said that the EAT had not identified why it was ‘axiomatically unfair’ that the pupil’s statement was not provided to Mr Hewston, given that the facts of the incident itself were not in issue and Mr Hewston was aware of the substance of what appeared in it. The Court of Appeal rejected this argument. Underhill LJ opined that “the starting point is that in any case where an employee is accused of misconduct against another person it is obvious good practice to show him that person’s complaint unless there is some good reason not to” (para 77). The failure to provide Mr Hewston with the pupil’s statement would not necessarily have rendered the decision to dismiss unfair if this document had been irrelevant to anything in dispute. In this case, however, given the gloss it had received in the school’s letter, the pupil’s statement was evidence which might support his argument about the school’s ulterior motive. Depriving him of the opportunity to deploy that evidence in support of that contention was procedurally unfair.

Given the EAT’s conclusions, it was bound to find that Mr Hewston’s dismissal was unfair, and it had not erred in making the finding itself.

In a short concurring judgment, Warby LJ reflects that the root cause of the unfairness may have been the inability of OFSTED, evidenced in these proceedings before the Court of Appeal, to spell out what was said to be wrong with what Mr Hewston had done. It was noted that OFSTED showed nothing to suggest either the Civil Service Code had been breached or that the allegation of reputational damage against Mr Hewston was justified.

Oliver Segal KC and Tom Kirk acted for Mr Hewston, the successful Respondent to the appeal, instructed by Bruce Robin at UNISON Legal Services. Tom Kirk also acted in the ET and EAT below. A full copy of the judgment can be found here.

This case note was written by Daniel Hallstrom.