Hewston v Ofsted: Lessons on Fair Dismissal and Safeguarding Policies

In this article from Forbes, we look at considerations for employers working with children following the outcome of Hewston v Ofsted

The Court of Appeal has recently delivered its judgment in Hewston v Ofsted [2025], ruling that an Employment Tribunal was wrong to find an Ofsted inspector’s dismissal to be fair after they brushed rainwater out of a pupil’s hair and patted them on the shoulder.

This decision illustrates the difficult considerations faced by employers working with children when it comes to disciplining employees for potentially problematic interactions, if they don’t have clear policies and procedures or appropriate training in place.

Background

Mr Hewston was employed as a school inspector by Ofsted. In 2019 he attended an inspection at a school where he brushed rainwater off the forehead of a 12-year-old boy returning inside from a rainstorm and placed a hand on the boy’s shoulder, in a gesture that was meant to be sympathetic.

Following the incident, the school submitted a complaint to Ofsted and to the local authority designated officer, stating that the physical contact was inappropriate and made the child feel uncomfortable.

Ofsted undertook a disciplinary process and ultimately dismissed Mr Hewston for gross misconduct, stating that he had failed to exercise good judgment with his actions bringing Ofsted into disrepute.

The Employment Tribunal

In the initial instance, the tribunal dismissed Mr Hewston’s claims and held that, whilst there wasn’t a ‘no touch policy’ in place, and though no harm had been intended, Mr Hewston’s conduct had been inappropriate. The incident resulted in a fundamental loss of trust and confidence and Ofsted had subsequently reasonably and fairly, dismissed him following their disciplinary process.

Following the outcome, Mr Hewston appealed to the Employment Appeal Tribunal (EAT) where the initial decision was overturned.

It was held that Mr Hewston had been unfairly dismissed as it had not been obvious to Mr Hewston that he could expect to be dismissed for touching a pupil in this manner. In addition, the school did not have a ‘no touch’ policy or any such policy which would make clear that this action would amount to gross misconduct. There did not appear to be any safeguarding issues and Mr Hewston had not undergone any relevant training.

Court of Appeal

Ofsted appealed this outcome, however, the Court of Appeal unanimously dismissed this appeal and agreed with the EAT’s conclusions on substantive and procedural unfairness. In particular, they referenced that a failure to show any contrition by an individual does not allow the employer to increase or ‘bump up’ the seriousness of the conduct. In addition, they considered that  if a particular act is not listed as an example of gross misconduct in the employer’s policies, an employer must consider whether the employee could reasonably be expected to know that the act will be treated as serious misconduct.

The Court of Appeal found that in this case, there had never been any suggestion of any improper motivation on the part of Mr Hewston, the incident did not raise any safeguarding issues and therefore his actions were not of a kind that he should reasonably have anticipated as warranting dismissal.

Key Considerations for Employers:

• Any examples of gross misconduct set out in relevant policies should be carefully thought about. Although the list does not need to be exhaustive, an ET will consider whether the employee could have reasonably regarded their behaviour to amount to gross misconduct.
• The fact that an employee does not show ‘insight’ or ‘contrition’ or accept that their behaviour constitutes misconduct will not always be sufficient to increase the seriousness of an allegation. There may be instances where this may be relevant, for example if there was a real risk of serious misconduct in the future, however ultimately the weight given to this will depend on the circumstances of the case.
• The Court of Appeal also referenced that employers must ensure that a fair disciplinary procedure is followed, and responses are proportionate when alleged misconduct arises. If there are records and documents which form the basis of the allegation brought against an individual, it is good practice to show these unless there is a good reason not to do so.
• For any organisations that works with pupils or vulnerable adults, it will be essential to clearly set out the standards expected of any interaction staff may have with those individuals and follow this up with appropriate training.

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If you require any further advice on any of the issues outlined in this article, please contact Forbes Solicitors for a conversation with their employment law specialists. Email [email protected] or call 0800 689 3206