Sacked inspector wins unfair dismissal case against Ofsted

Schools inspection body Ofsted was wrong to sack an inspector who wiped water off a pupil’s head, the Court of Appeal has found.

Trade union Unison brought the case on behalf of Andrew Hewston, who argued he was unfairly dismissed for gross misconduct following the incident in October 2019.

Mr Hewston had lost at the Employment Tribunal (ET) but won at the Employment Appeals Tribunal (EAT), whose finding Ofsted then challenged in the Court of Appeal.

Giving the main judgment, Lord Justice Underhill said: “I find it hard to see how in such a case it could be reasonable for the employer to bump up the seriousness of the conduct only because the employee fails during the disciplinary process to show proper contrition or insight.”

The incident occurred when Mr Hewston brushed water off a 12 or 13 years old boy’s head and touched the shoulder after pupils had been caught in a rainstorm.

Judges noted there was a history of animosity between the school and Ofsted, to which the incident was reported as one of inappropriate touching. Mr Hewston was  summarily dismissed for gross misconduct.

Underhill LJ noted: “It is right to state at the outset that there has never been any suggestion of any improper motivation on the part of the claimant: what he did was intended as a friendly act of sympathy and assistance.”

He noted Ofsted did not have, and was not intending to introduce, a ‘no touch’ policy and that while Mr Hewston had been supplied with the school’s complaint and a report by the local authority designated officer, he was not given the pupil’s complaint.

The EAT’s conclusion in favour of Mr Hewston was challenged by Ofsted on three points.

These were that the EAT considered the wrong question and failed to adequately articulate its reasoning for finding an error of law by the ET, that it erred in its approach to whether the lack of specificity in disciplinary rules made the dismissal unfair and that the EAT erred in its consideration of the relevance of the claimant’s attitude to his conduct to his dismissal.

Ofsted said that it sacked Mr Hewston both for substantive misconduct and became of his insistence he had done nothing wrong, which it said showed a lack of insight that undermined trust in his professional judgment.

Underhill LJ said: “It is important in addressing that submission to bear in mind that the issue arises only where, as the EAT found to be the case here, the misconduct in itself is not of a kind which would justify dismissal.

“As a general proposition, I find it hard to see how in such a case it could be reasonable for the employer to bump up the seriousness of the conduct only because the employee fails during the disciplinary process to show proper contrition or insight”.

He said Ofsted may have been entitled to find that it was a misjudgement for Mr Hewston to act as he did “but it was not a misjudgement of a kind which implied a real risk of serious misconduct in the future”.

Ofsted’s own dismissal letter had said Mr Hewston was not a risk to children.

"The worst that might in theory be feared was that on some future occasion he might as a result of a similar misjudgement make some unwelcome physical contact with a pupil. But even that risk would appear remote,” Underhill J said.

Mr Hewston told Ofsted “in terms that he would not do anything of the kind again…that is entirely plausible: once bitten twice shy”, the judge said.

Underhill LJ said the fundamental point before the EAT was that, in the absence of any Ofsted ‘no touch’ rule or other explicit guidance Mr Hewston had no reason to believe that he did anything to justify dismissal; and it did not believe that his subsequent attitude made any difference.

“In my view that conclusion is plainly right,” Underhill LJ said.

He went on to explain that where an employee is accused of misconduct against another person it is obvious good practice to show him any contemporary record of that person’s complaint.

Mr Hewston though was denied that even though he “made clear at the disciplinary hearing that he believed that there was a possibility that the impetus behind the complaint was not any real distress suffered by the pupil but the school’s animosity against Ofsted”.

Agreeing with Underhill LJ, Lord Justice Warby said Ofsted had called contact between Mr Hewston and the pupil ‘inappropriate’ but had ruled out any sexual motive.

“Stripped of such insinuations the word ‘inappropriate’ in the charge signified only that Ofsted thought the touching was not something that the claimant should have done, that it was something of which Ofsted disapproved. It did not explain why [but] went on to state that the touching was contrary to ‘Ofted core values [and] professional standards’. But the values and standards alleged to have been contravened were not identified in the charge. In my opinion, no satisfactory attempt has been made to do so since.”

Sir Launcelot Henderson agreed with both judges and said: ”It seems to me deeply regrettable that the claimant…should have been summarily dismissed for conduct which, on any reasonable appraisal, amounted to no more than a momentary and well-meaning lapse of professional judgment of a kind which he was most unlikely ever to repeat.”

Unison general secretary Christina McAnea said: “Andrew Hewston’s career was cruelly and unnecessarily cut short by Ofsted. He never should have been sacked and Ofsted shouldn’t have wasted public money pursuing him needlessly through the courts.

She added: “No one knows when something might go wrong at work and lives can so easily be turned upside down by groundless accusations like those made by Ofsted against Andrew.”

Ofsted declined to comment.

Mark Smulian