Andrew Hewston

OFSTED (Office for Standards in Education, Children’s Services and Skills)

Court of Appeal dismisses appeal from employer when dismissal was found both substantively and procedurally unfair. Useful guidance given on running an investigation and that complaints should be given as part of the process.

The claimant was employed as a School Inspector since 2007. In 2019 he attended an inspection at a school where there were poor relations with the respondent. During the inspection, as what was termed as a ‘friendly act’, the claimant brushed water off a pupil’s head and touched their shoulder. The school reported the incident to the respondent and the local authority designated officer. This led to a disciplinary hearing. During the hearing the claimant stated he did not consider it gross misconduct but stated he would not do it again because of the stress it caused.  He was dismissed with the respondent stating it was gross misconduct for bringing the respondent into disrepute due to a grave error of judgement.

The Tribunal, at first instance, dismissed the claim.  However, the EAT found that the dismissal was unfair as it would not have been obvious to the claimant that such action would lead to dismissal.  There were no safeguarding issues raised, the employer had no ‘no touch’ policy in place and there was no training relating to the matter.  The EAT also found that the dismissal was procedurally unfair due to the lack of information given to the claimant namely the statement from the pupil or the school’s complaint.

The respondent appealed to the Court of Appeal. The appeal related to the reasoning from the EAT which the respondent stated focused too much on the absence of a policy on touching. However, the Court of Appeal stating that was a starting point for its reasoning which looked at whether the employee would have appreciated that acting in that way could lead to dismissal.  Indeed, the claimant’s point that he would not do anything of the kind again was not sufficient to demonstrate that there was misconduct. 

The Court of Appeal, on the procedural point, stated that it was a matter of good practice to show any contemporary record of a person’s complaint unless there was a good reason not to do so.  The claimant had alleged that the complaint could have been due to strained relations between the school and the respondent, and the documentation may have supported that case yet the claimant was deprived of the chance to make those points due to the fact that the documents were not disclosed.  Therefore, the appeal was dismissed, and the finding of unfair dismissal remained.

The Court of Appeal provides some useful guidance when it comes to investigations and disciplinary proceedings by stating that obvious good practice is to ensure that a contemporary record of a complaint is made available to the employee.  This was not done and led to procedural issues with the dismissal.  However, there were substantive grounds as there was no bright line between the employee’s action here and any reasoning why the employee would believe that it would lead to action amounting to gross misconduct. This was, in part, because there was no policy prohibiting the conduct.

You can read the case in full here:
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2025/250.html&query=(hewston)