Hewston v Ofsted [2025] EWCA Civ 250 (14 March 2025)

Hewston v Ofsted [2025] EWCA Civ 250 (14 March 2025)

The Court of Appeal held that, in the absence of a clear policy or guidance prohibiting all physical contact, and where the conduct was not inherently or obviously gross misconduct, it was not reasonable for OFSTED to dismiss the claimant for a single act of uninvited but non-malicious touching. The claimant was not...

Source-derived case information.

Citation
[2025] EWCA Civ 250
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) / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal
Outcome
Appeal dismissed; EAT decision upheld
Legal Topics
Unfair Dismissal, Gross Misconduct, Procedural Fairness, Employment Rights Act 1996, Disciplinary Procedures, Safeguarding, Physical Contact in the Workplace
Employment Law Unfair Dismissal Gross Misconduct Procedural Fairness Employment Rights Act 1996 Disciplinary Procedures Safeguarding Physical Contact in the Workplace

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Summary, issues, holding and outcome

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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) / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal

Legal Issues

  1. 1 Whether the dismissal of the claimant for gross misconduct was fair under section 98 of the Employment Rights Act 1996
  2. 2 Whether the claimant was on fair notice that his conduct could result in dismissal
  3. 3 Whether the disciplinary process was procedurally fair

Ratio Decidendi

The Court of Appeal held that, in the absence of a clear policy or guidance prohibiting all physical contact, and where the conduct was not inherently or obviously gross misconduct, it was not reasonable for OFSTED to dismiss the claimant for a single act of uninvited but non-malicious touching. The claimant was not on fair notice that such conduct could result in dismissal, and the dismissal was therefore unfair. The claimant's lack of contrition could not, in these circumstances, convert an otherwise unfair dismissal into a fair one.

Court Disposition

Appeal dismissed; EAT decision upheld

Orders

  • Claim of unfair dismissal upheld; matter remitted to Employment Tribunal for determination of remedy
  • Wrongful dismissal claim remitted for determination of liability and damages if upheld