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The Court of Appeal has upheld the Employment Appeal Tribunal’s decision that an Ofsted inspector was unfairly dismissed after he brushed rain off a student’s face and hair. The act was misguided and unprofessional but there were never any safeguarding concerns or allegations of improper motive. In the absence of a “no-touching” policy or training on the matter, it was unfair to treat this incident as an act of gross misconduct resulting in summary dismissal.
The decision is a good reminder to ensure that there are clear policies and guidance about what constitutes misconduct, which is supported by training. The absence of such policies will not mean that any sanction including dismissal is automatically unfair but, outside of “obvious” cases of gross misconduct, it will be harder to show that the dismissal is fair when you haven’t made clear the standards of behaviour you expect from your employees.
It will generally be unreasonable to “bump up” the severity of the conduct because of the employee’s lack of remorse or contrition. There may be cases in which a dismissal for less serious misconduct is fair where the employee persistently fails to recognise that they have done something wrong, which means there is a real risk that they will commit more serious misconduct in the future. However, this was not one of those cases. The employee here had said he would not repeat the mistake again. Although this was motivated by the “trouble that it had got him into” rather than because he thought he had done anything wrong, in the court’s view, motivation did not matter so long as the result of mitigating the risk of the behaviour being repeated was achieved.
For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.
Case: Ofsted v Hewston, Court of Appeal
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