For a misconduct dismissal to be fair, the employer must have a genuine belief, based on reasonable grounds, having carried out such investigation as was reasonable in all the circumstances, that the employee is guilty of the alleged misconduct, and a fair disciplinary process must be followed.
Under the relevant Acas Code: (a) an employer’s behavioural expectations of its staff, including any examples of gross misconduct, should usually be set out clearly in a written code of conduct or disciplinary policy and/or explained to its staff in training (¶2, 24); and (b) during the disciplinary process, the employee should ordinarily be given copies of any evidence being considered by the person(s) making the decision to dismiss (¶9).
The EAT has recently held that an employee was unfairly dismissed because the employer had failed to comply with those two principles – in particular, the employer had not given the employee any prior warning that a single incident of the relevant conduct could lead to his dismissal and had withheld relevant evidence from him during the disciplinary process.
H was employed as an inspector by Ofsted, which is the independent regulator and inspector of schools. His role involved visiting school premises to perform inspections. Following one such inspection, the school made a wide-ranging complaint to Ofsted, which the tribunal later described as ‘scathing in its criticisms of the regulatory inspection generally, including an allegation that the inspectors were, by its nature, showing discriminatory Islamophobic perceptions’.
One part of the school’s wider complaint about the inspection referred to an incident involving H – a group of school children had come into the school soaking from the rain and H was alleged to have brushed rain water off the hair or forehead of one boy and put his hand on his shoulder.
This part of the school’s complaint was reported, as a matter of routine, to the Local Authority Designated Officer (LADO), whose role is to manage allegations against adults who work with children. Having considered the referral, the LADO decided that no safeguarding concerns arose from the incident and suggested that the proportionate response was ‘for [Ofsted] to investigate this matter internally with [H] with consideration to raising awareness of professional boundaries and any training that may be required in support of this’.
A disciplinary process was triggered on the basis that H had ‘without consent or invitation touched a child on the head and shoulder’, and these actions were ‘inappropriate and…contrary to Ofsted core values, professional standards and the Civil Service Code’, had ‘damaged Ofsted’s reputation’ and breached ‘[Ofsted’s] trust and confidence in [H’s ] role as an Ofsted inspector’. However, when it invited H to a disciplinary hearing, Ofsted did not share the LADO report or the statement of the boy he had touched with H, because it took the view that these belonged to the LADO and were not to be shared with H.
H argued during the investigation that it seemed Ofsted were advocating that it had a ‘no touch’ policy and that this ‘went against the content of lectures given at [previous] Ofsted conferences…that suggested touch was a positive tool to use in social care’. However, Ofsted denied throughout that it had a ‘no touch’ policy.
H was summarily dismissed for gross misconduct. The dismissal letter confirmed that the decision to dismiss was primarily due to the fact H ‘had failed to exercise good inspection judgment by initiating physical contact with a student when it was not invited or expected…[and this touch] was a grave error of judgment on your part…’. The dismissing manager went on to express concern about H’s lack of understanding, self-awareness, contrition, expressed doubts about H’s professional judgment and noted the impact H’s actions had on Ofsted’s reputation (via the referral to the LADO and complaint from the school). The dismissing manager concluded that they had ‘no confidence in [H] sufficiently understanding the severity of [his] error and as such will not initiate uninvited and unwarranted contact in the future’.
The employment initially tribunal dismissed H’s unfair dismissal and wrongful dismissal claims, but H successfully appealed to the EAT.
In relation to H’s unfair dismissal claim, the EAT held:
- The tribunal had erred when it failed to adequately consider the fact that H had not been forewarned by his employer, either by a written policy, training or otherwise, that a single incident of physical contact of this sort (which was not found to give rise to any safeguarding issue) could result in his dismissal. Ofsted had denied the fact it had a ‘no touch’ policy and did not seek to rely on any written policy, or training. Therefore, the question for the tribunal was whether Ofsted was entitled to take the view that it did not need to be spelled out that what H did was conduct for which he could expect to be dismissed, because it should have been obvious, from its nature, that it was. Although neither the Acas Code, nor previous case law, require an employer to identify every type of conduct which it regards as gross misconduct justifying dismissal for a single transgression, there is an underlying principle of fairness that it is ‘not fair to dismiss an employee for conduct which he did not appreciate, and could not reasonably have been expected to appreciate, might attract the sanction of dismissal for a single occurrence’. The conduct H was accused of (a single uninvited touch which did not involve safeguarding concerns) was not so obviously gross misconduct that it did not need to be spelled out in writing that a single instance could lead to dismissal.
- The tribunal had erred when it failed to find that Ofsted’s failure to give H, in advance of the disciplinary hearing, copies of three documents seen and relied upon by the dismissing officer (i.e. the text of the school’s complaint, the text of the child’s statement, and an email from the LADO) rendered H’s dismissal unfair. The Acas Code required copies of any written evidence, including any witness statements, to be shared with the employee, and the EAT has previously strongly emphasised the importance of the employee being given witness statements on which the employer was going to rely in a fair disciplinary process.
In relation to wrongful dismissal claim, the EAT held that tribunal did not make a clear finding that it objectively considered, on the evidence before it, that H’s conduct amounted to a repudiatory breach of contract and/or as to why.
The EAT took the relatively rare step of substituting a finding that H’s dismissal was unfair and quashed the tribunal’s decision in the wrongful dismissal claim. The case will return to a different tribunal, to redetermine the wrongful dismissal complaint and to determine remedy for unfair dismissal.
Hewston v OFSTED [2023] EAT 109
For further information, please contact:
Emma Ahmed, Hill Dickinson
emma.ahmed@hilldickinson.com
