We want to take this opportunity to give you an update on a case in the Education sector (although the principles apply equally to all places of work). Don’t worry, we’ve not just plucked this case out of thin air! It offers an insight into something we always stress to our clients: the importance of having clear policies and procedures in place and ensuring staff are properly trained on these.
Recently, the Court of Appeal handed down its judgment in the case of OFSTED v Hewston.
In this case, Mr Hewston (the Claimant) had worked for OFSTED (the Respondent) as an inspector for over 12 years. During an inspection at a school, a Year 8 pupil entered the room with rainwater on his head – he’d been out doing PE in the pouring rain (ah, the good old days of school PE lessons ey?) The Claimant took it upon himself to brush the water off the pupil’s head. He also touched the pupil’s shoulder and asked if he was ok.
The school complained to OFSTED about their inspection generally and made specific reference to this incident, amongst other things. The school had taken a statement from the pupil but in its complaint, this statement and the impact on the pupil had been exaggerated by the school to make it seem more serious. Off the back of this, OFSTED started a disciplinary procedure to address matters.
The Claimant maintained, throughout the investigation and disciplinary hearing, that he would not act in this way again. He said that whilst he didn’t recognise his actions as “gross misconduct” – he felt his actions were appropriate – the stress that had been caused as a result of what he had done meant it wasn’t worth it. He also said that he would happily go through training.
As part of the disciplinary procedure, the Claimant was not shown a copy of the pupil’s statement until he appealed – he only received the summary provided by the school (which, as we know, had been exaggerated) and the LADO report.
It was accepted by all involved (including LADO) that this wasn’t a safeguarding concern. However, the disciplinary officer felt that as a senior and experienced inspector with over a decade of experience, the Claimant should have known better than to touch a pupil unexpectedly and without invitation. That being said, OFSTED didn’t have a policy in place around physical contact and their disciplinary rules didn’t define where use of touch might be classed as misconduct, let along gross misconduct. Employees had received no guidance or training on this specific issue.
The disciplinary officer also took the view that as the Claimant hadn’t recognised his behaviour as being gross misconduct, this showed a lack of remorse.
The Claimant brought claims for wrongful and unfair dismissal in the Employment Tribunal. The Tribunal dismissed those claims, finding that the decision to dismiss fell within the range of reasonable responses. The Employment Appeal Tribunal overturned this decision, finding that the dismissal was substantively and procedurally unfair. OFSTED appealed.
The Court of Appeal considered the following:
- The EAT had been correct in finding the lack of clear guidance to employees at OFSTED (either through policies, procedures or training) was determinative in considering fairness – due to the lack of clarity and guidance, it would not have been obvious to the Claimant that he could be dismissed.
- The Court of Appeal issued a clear warning to employers seeking to rely on loss of trust and confidence as justification for dismissal in these circumstances, saying that this cannot justify dismissal for misconduct unless the employee has been guilty of conduct sufficiently serious to have justifiably had that effect.
- Similarly, the Court of Appeal said that “reputational harm may be a relevant factor” in deciding on sanction but “it cannot be a stand-alone basis for such a decision”.
- It is “obvious good practice” to show the person facing allegations the actual complaint received, unless there is some good reason not to. In this case, failing to provide the pupil’s statement wouldn’t necessarily have meant the dismissal was unfair, if the document had been irrelevant. But because the school had heightened the seriousness of the complaint, the actual statement was evidence which could support the Claimant’s argument that the school were out to get him.
So, what does this teach us then (pun very much intended)?
- It’s unlikely to be fair to dismiss an employee for conduct where the employee would not reasonably expect the employer to treat the conduct as gross misconduct warranting dismissal. Basically, if there’s ambiguity around the seriousness of an incident, a tribunal is likely to find in favour of the employee.
- This means it is really important that clear policies and procedures are in place setting out expectations and possible sanctions if those expectations aren’t met. This could either be disciplinary rules, a code of conduct or a specific policy covering particular potential incidents (for e.g. physical contact).
- Regardless of this, there should always be disciplinary rules that clearly set out what is considered to be gross misconduct which may warrant dismissal without notice or payment in lieu of notice.
- Policies should be readily accessible and available to all staff and they should receive regular training to ensure the contents of these policies are reinforced. We would always advise that a clear record of the training is kept and that staffs’ understanding is checked – this could be through a set of multiple choice questions for example.
- You should make sure all evidence is shared with the employee before a disciplinary hearing and this should include statements, not just summaries of statements. The only exception to this is where there is a good reason not to share the actual statement. So, for example, if there are anonymity issues at play.
If you’re ever in doubt, give us a shout, we’re always about and happy to dish out our expert knowledge and legal clout.
You can reach us on 01332 866610 or enquiries@precepthr.com
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