Key Lessons for Employers – Case Review: Ofsted Inspector’s Unfair Dismissal

When is a well-intentioned act a sackable offence? That was the crux of Mr Hewston’s high-profile unfair dismissal case against Ofsted. Dismissed for gross misconduct after brushing rainwater off a child’s head, Hewston’s case travelled from an employment tribunal loss to a victory at the Employment Appeal Tribunal (EAT) and later the Court of Appeal. The ruling sends a clear message to employers – fairness, clarity, and procedure matter.

The Case in Brief

Hewston, a seasoned Ofsted inspector, was dismissed on the grounds of breaching professional boundaries and causing reputational damage. Ofsted’s argument? Any physical contact with a child—even a seemingly harmless act—was unacceptable. However, the EAT overturned the decision, finding the dismissal unfair due to:

• Lack of clear guidance warning that such conduct could lead to dismissal
• A flawed disciplinary process, including failure to disclose key documents
• An overreaction to an isolated, well-meaning act from an employee with an unblemished record.

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Practical Takeaways for Employers

1. Policy clarity is non-negotiable

Employers must ensure their conduct policies leave no room for ambiguity. If an organisation deems certain actions as gross misconduct, this must be explicitly communicated in policies and training.

2. Context matters in disciplinary decisions

Zero-tolerance policies can backfire when applied without nuance. Dismissing a long-standing employee for an isolated, well-intended act may appear disproportionate and invite legal scrutiny.

3. Follow a robust and fair process

A solid disciplinary process requires transparency. Employers should provide clear allegations, access to evidence, and an opportunity for a full defence before making a decision.

4. Consider proportional responses

Not all rule breaches warrant dismissal. Employers should consider alternative disciplinary actions, such as warnings or retraining, especially where misconduct is minor and unintended.

The Bottom Line

The Hewston case serves as a stark reminder: rushing to dismiss an employee without clear policies, proper investigation and a proportionate response can lead to legal headaches. Employers should review their disciplinary policies, ensure training aligns with expectations, and always weigh context before taking drastic action.

Need a policy refresh? Now’s the time to review your employee handbook before an unexpected test case lands at your door.

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This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.