Andrew Hewston v Ofsted

Andrew Hewston v Ofsted

The dismissal was substantively and procedurally unfair because the claimant was not on fair notice that his conduct—touching a pupil in a non-sexual, well-meaning manner—could result in dismissal, there was no clear policy or guidance prohibiting such conduct, and key documents were not disclosed to him during the disciplinary process. The employer's reliance on the claimant's lack of contrition did not justify dismissal where the underlying conduct was not of a kind that would reasonably be expected to result in summary dismissal.

Parties
Claimant/respondent: Andrew Hewston; Respondent/appellant: OFSTED (Office for Standards in Education, Children’s Services and Skills)
Jurisdiction
England and Wales
Judgment Date
14 March 2025
Procedural Posture
Employment Appeal (unfair Dismissal) / Appeal From Employment Appeal Tribunal to Court of Appeal
Outcome
Appeal dismissed; finding of unfair dismissal upheld.
Legal Topics
Unfair Dismissal, Disciplinary Procedures, Procedural Fairness, Gross Misconduct, Safeguarding, Employment Rights Act 1996
Employment Law Unfair Dismissal Disciplinary Procedures Procedural Fairness Gross Misconduct Safeguarding Employment Rights Act 1996

Case Brief

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Parties

Andrew Hewston

Claimant/respondent

OFSTED (Office for Standards in Education, Children’s Services and Skills)

Respondent/appellant

Procedural Posture

Employment Appeal (unfair Dismissal) / Appeal From Employment Appeal Tribunal to Court of Appeal

Legal Issues

  1. 1 Whether the dismissal of the claimant for touching a pupil was fair within the meaning of section 98 of the Employment Rights Act 1996
  2. 2 Whether the claimant was on fair notice that such conduct could result in dismissal
  3. 3 Whether procedural fairness was observed in the disciplinary process

Ratio Decidendi

The dismissal was substantively and procedurally unfair because the claimant was not on fair notice that his conduct—touching a pupil in a non-sexual, well-meaning manner—could result in dismissal, there was no clear policy or guidance prohibiting such conduct, and key documents were not disclosed to him during the disciplinary process. The employer's reliance on the claimant's lack of contrition did not justify dismissal where the underlying conduct was not of a kind that would reasonably be expected to result in summary dismissal.

Court Disposition

Appeal dismissed; finding of unfair dismissal upheld.

Orders

  • Claim remitted to Employment Tribunal for determination of remedy.
  • OFSTED's application for remission on liability dismissed.