The Employment Appeal Tribunal have handed down judgment in the case of Hewston v Ofsted [2023] EAT 109, a case which highlights the importance of employers setting out disciplinary guidance and/or training on what touch may be deemed gross misconduct in the workplace where it is not reasonably obvious to an employee that a particular use of touch would warrant summary dismissal. A full copy of the Judgment can be found here.
The facts
The Claimant, Mr Hewston, was employed by Ofsted (the Respondent) as an inspector. During a school inspection visit a group of school children came in soaking from the rain. The Claimant briefly touched a pupil’s head to wipe away rain that was dripping down his face, lightly touched the top of his shoulder and asked if he was ok. The Respondent accepted that the Claimant had not acted to harm the pupil and it was accepted this case did not give rise to any safeguarding risks. The Claimant had over 12 years of service and a completely clean disciplinary record. The Respondent had provided no training to staff on the use of inappropriate touch during inspections and there were no disciplinary rules in place defining inappropriate use of touch as misconduct, let alone gross misconduct.
However, following a complaint from the school being inspected and a disciplinary process, the Claimant was dismissed for gross misconduct. The dismissing officer concluded that the Claimant had failed to exercise “good inspection judgment” by initiating physical contact with a student when it was not invited or expected, and that the student had reported feeling uncomfortable. Neither the school’s complaint nor the student’s own statement were disclosed to the Claimant prior to his dismissal. Moreover, the local authority designated officer (LADO) had recommended to the Respondent that the proportionate response would be an internal investigation and consideration to raising awareness of professional boundaries and any training needed to support this. That recommendation was not disclosed to the Claimant either. The Claimant brought claims of unfair dismissal and wrongful dismissal but both claims were dismissed by an Employment Tribunal.
The Claimant successfully appealed to the EAT on several grounds. His appeal was supported by his trade union, UNISON, which had grave concerns about the wider consequences of this case for its members, Ofsted’s arguable failure to implement any coherent policy on Inspectors’ physical contact with children and the uncertainties this case created for its members who regularly work in school environments.
The EAT’s Judgment
In a judgment handed down by HHJ Auerbach, the EAT found several serious errors in the Tribunal’s approach to both substantive and procedural unfairness. Firstly, the Tribunal had failed to engage with whether the dismissal was unfair, because the Claimant was not fairly on notice that he might be dismissed for this specific conduct, and it was not inherently obvious that no such notice was needed (at para 97).
The EAT re-stated an important underlying principle of fairness: “it is not fair to dismiss an employee for conduct which he did not appreciate, and could not reasonably have been expect to appreciate, might attract the sanction of dismissal for a single occurrence” (para 73). The Respondent tried to argue that it was in fact not its position that the original touching incident was in and of itself conduct for which the Claimant could expect to be dismissed but rather the Claimant had been dismissed because of his subsequent attitude to that conduct. The EAT did not agree with this analysis and said the issue could not be side-stepped in this way. It was clear from the Tribunal’s own findings that the principal reason for dismissal was connected to the initial conduct. It was therefore “incumbent on the Tribunal to consider whether it was open to the dismissing and appeal officers, within the band of reasonable responses, to take the view that the Claimant’s conduct was of such a kind that he did not need to be specifically forewarned that it would be regarded as so serious as to warrant dismissal”. The EAT observed that there were some kinds of physical touch, the inherent and/or unambiguous nature of which is such that the employer could conclude warranted dismissal. The task for the Tribunal was to decide, considering all its findings of fact, whether this incident fell into that category.
The EAT commented that the Tribunal’s reasoning was difficult to follow. There was no clear through line of reasoning as to whether it was within the band of reasonable responses for the dismissing and appeal officers to conclude that notwithstanding that there was no guidance document on the question of physical contact or touch, the Claimant should have appreciated at the time of the incident, that his particular conduct was as grave as they both considered it to be.
The EAT concluded that it was not open to the Tribunal in the light of its own findings of fact to conclude that the Claimant had been placed on express fair notice that his particular conduct in this incident would attract the sanction of dismissal. Given its findings that the specific incident was not found to have raised a safeguarding issue, that the Respondent did not claim, and was not found, to have a no-touch policy, and that it was not disputed that there was no policy or guidance given in training specifically on the subject of touch, had the Tribunal applied the law to the particular facts found in this case, it would have been bound to conclude that it was not fair to dismiss the claimant when he was not on fair notice that this conduct might attract that sanction.
Secondly, there was a further substantive failure by the Tribunal to ask itself whether the Respondent gave any consideration to the Claimant’s long and unblemished record of service, a fact the Claimant had relied on during the disciplinary process.
Thirdly, the Tribunal made several errors within its analysis of procedural fairness:
In view of its finding that the Tribunal would have been bound to have found the dismissal unfair had it properly directed itself of the law, the EAT not only quashed the finding of unfair dismissal but also substituted a finding that the Claimant was unfairly dismissed. The issue of remedy was remitted to a different Tribunal.
Regarding the claim for wrongful dismissal, it was well-established that a Tribunal must decide whether an employee was, by his conduct, in fundamental breach of contract by making its own objective finding and evaluating the facts. It is not enough for an employer merely to assert that conduct has in its subjective view damaged trust and confidence. HHJ Auerbach summarised the test in a wrongful dismissal test as follows: “It is always for the Tribunal to decide whether, in its view, taking account of any findings as to the employee’s intent, the effect of the conduct and/or other relevant circumstances, the employer was objectively entitled to treat the substantive conduct as having so damaged the ongoing relationship as to justify bringing it to an end (para 115).
The EAT concluded that despite having earlier correctly directed itself that a dismissal may be fair but wrongful (or vice versa) the Tribunal appeared to have taken a wrong turn when it came to the point of actually deciding the wrongful dismissal complaint. There was no specific statement within the Judgment of the Tribunal’s own conclusions, or, however briefly, why it for its part concluded that the claimant’s conduct amounted to a repudiatory breach, in addition to, and distinct from, its conclusion that, for unfair dismissal purposes, the Respondent reasonably decided upon the sanction of dismissal.
The EAT stressed that in a case where both unfair dismissal and wrongful dismissal are relied upon, in order not to muddle the two reasoning exercises the conclusions on the wrongful dismissal are usually sensibly set out after those on liability for unfair dismissal – but they should not be a mere afterthought. In the present case there was not a sufficiently clear and distinct finding as to the Tribunal’s own objective view of the conduct. The decision dismissing the complaint of wrongful dismissal would be quashed and would be remitted to be determined by a different Tribunal.
Analysis
This case will serve as a welcome reassurance to employees that the band of reasonable responses test will not be satisfied simply by an employer stating that it considers a particular use of touch to be unprofessional by its own self-defined standards or expectations, particularly where there is no evidence of those expectations ever being communicated to the workforce. Tribunals will be required to critically analyse whether in any given case the conduct was obviously of such a kind that the employee did not need to be specifically forewarned that it would be regarded as so serious as to warrant dismissal.
The EAT’s judgment serves as a cautionary reminder to employers in cases of touch which is not obviously and self-evidently inappropriate on its own terms. In such cases there will be more of an expectation on employers to set out its expectations around touch in the context of its own workplace, within clear disciplinary rules and/or training.
Mr Hewston, the successful appellant, was represented by Tom Kirk, instructed by Ann Rooney at Thompsons Solicitors and supported by UNISON.
