Background:

The claimant was employed by the respondent as an Inspector.  During a school inspection with a colleague a group of school children rushed in from outside after it had started to rain.  The claimant brushed water off the hair from a child and placed his hand on the child’s shoulder.  A complaint was raised by the School to the respondent with the teacher observing the incident feeling that it was inappropriate and uninvited contact.  The teacher stated that the student looked embarrassed by what happened. This was corroborated by the student’s statement stating they did not feel comfortable when their head and shoulder was rubbed.  The respondent duly investigated this leading to a disciplinary process by which the claimant was summarily dismissed for misconduct.

In terms of the background, there had been no training or policy relating to the implications of physical contact of this sort where there was no ‘safeguarding risk’.  In terms of the procedure adopted by the respondent there was an issue raised whereby the claimant was not given some documents relied upon by the dismissing officer.  Namely these documents were the School’s complaint, the child’s statement and the view of the Local Authority Designated Officer.  However, the School complaint was given to the claimant when he appealed the outcome.

Outcome:

The Tribunal, at first instance, had dismissed the complaints of unfair and wrongful dismissal.  This decision was subject to the appeal before the EAT.

The EAT found that there was insufficient consideration given to the fact that the claimant was not forewarned, by policy or training, that a single incident of physical contact of this sort could result in a dismissal.  Heed was given to the fact that the physical contact itself did not give rise to any safeguarding issue.  On the procedure, the EAT held that the Tribunal had erred by not acknowledging the failure of the respondent in providing key documents which were relied upon in making the decision to dismiss. As a result, the EAT substituted its finding that the decision to dismiss was unfair both on substantive and procedural grounds.   The case was remitted to the Tribunal for a remedy for unfair dismissal.

Practical Guidance for Employers:

This case demonstrates the importance of having appropriate policies and procedures in place when taking disciplinary action.  In this case, the lack of policy or training relating to the conduct between the inspectors and the school pupils meant that these minor physical interactions could not, in of itself, warrant a decision to dismiss.  On the procedural aspect, as a part of natural justice, the employee has the right to see the documentation and evidence against them to allow for representations to be made on their behalf or defence.  This was not done and as a result the EAT found that the decision to dismiss was unfair.  Going forward employers should recognise the importance of providing the evidence against the employee when investigating and undertaking disciplinary action.

The full case can be found here: https://www.gov.uk/employment-appeal-tribunal-decisions/mr-a-hewston-v-ofsted-2023-eat-109