A lack of remorse will not increase the seriousness of the underlying conduct

In Ofsted v Hewston [2025] EWCA Civ 250, the claimant was an Ofsted school inspector. During a school inspection, he had, in a friendly manner, brushed water off the head of a boy who had been caught in a rainstorm. This was reported to Ofsted by the school as inappropriate touching. Following disciplinary proceedings, the claimant was summarily dismissed for gross misconduct.

The inspector brought a claim of unfair dismissal that was unsuccessful in the Employment Tribunal. The Employment Appeal Tribunal allowed the claimant’s appeal. Ofsted then appealed to the Court of Appeal.

In dismissing Ofsted’s appeal, the court of appeal concluded that:

1. Ofsted did not have a “no-touch” policy, and had given the claimant no relevant training. It would not have been obvious to him that he could expect to be dismissed for brushing rainwater off the boy’s head.
2. The incident had raised no safeguarding issues.
3. The dismissal was also procedurally unfair, because the claimant had not been shown relevant evidence during the disciplinary proceedings.
4. The respondent had wrongly treated the claimant’s lack of remorse as increasing the seriousness of the underlying conduct.

The learning point is that employers should ensure their policies and training reflect their intended approach to misconduct. Dismissible offences should be obvious. Further, a lack of remorse will not increase the seriousness of the underlying conduct.

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Authors

Alice Meredith

Call 2013

Related areas

Employment

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