OFSTED Inspector’s dismissal for touching pupil unfair

A recent decision from the Court of Appeal, in which an OFSTED Inspector’s dismissal for touching a pupil was found to be unfair, illustrates the importance of schools having clear written standards on matters such as physical contact with pupils, with the standards reinforced by appropriate staff training.

Mr Hewston had been an OFSTED Inspector since 2007. In 2019, while carrying out an inspection at a school, he brushed water off a twelve-year old pupil’s head, and touched his shoulder, when the pupil came inside after being caught in a rainstorm. This had made the pupil feel uncomfortable and the school reported the incident to OFSTED as a case of inappropriate touching.

OFSTED investigated and, during the subsequent disciplinary hearing, Mr Hewston said that, although he did not consider the incident fell within the definition of gross misconduct, he would not do it again because of all the stress it had caused. He also said he would be happy to undergo training . However, Ofsted decided to dismiss him for gross misconduct. While it acknowledged that he was not considered a risk to children and had not done anything amounting to “harm” or a “safeguarding breach”, he had brought OFSTED into disrepute through his grave error of judgment and, as he had not shown any remorse, it was not satisfied that he would not do something similar again.

Mr Hewston claimed unfair dismissal, but the Employment Tribunal ruled that his dismissal was fair. It considered that OFSTED had conducted a fair investigation and reasonably believed that his actions undermined its trust and confidence in him and amounted to gross misconduct.

The Employment Appeal Tribunal disagreed, ruling that the dismissal was unfair as it would not have been obvious to Mr Hewston that he could expect to be dismissed for touching a student in this manner. The incident raised no safeguarding issues, OFSTED did not have a “no touch” policy and he had not received any relevant training,

The Court of Appeal agreed with the Employment Appeal Tribunal and dismissed OFSTED’s appeal.

What does this mean for schools?

It is likely to be unfair to dismiss an employee for conduct which they could not reasonably expect the school to regard as serious misconduct. It is therefore important for schools to have clear written conduct standards, readily accessible by staff and reinforced by appropriate training. Disciplinary rules should specify the types of conduct that are likely to be regarded as gross misconduct warranting dismissal.

The case referred to in this article is: Hewston v Ofsted