Lack of clear employer policy rendered dismissal unfair.
Employers working with children and vulnerable adults will be very well aware of the need for clear guidance for staff on professional boundaries and safeguarding. Where conduct allegations arise which do not represent a clear safeguarding risk, employers can face difficult decisions about the level of seriousness of the conduct and the impact of the conduct on reputation and relationships with key stakeholders.
A recent case considered in the Court of Appeal provides useful insight for employers considering such allegations and deciding on appropriate sanctions, particularly when taking into account to what extent the employee shows remorse during the disciplinary proceedings and considering allegations of reputational damage.
Case details: Hewston v Ofsted (Court of Appeal)
Mr Hewston (H), an experienced Ofsted inspector, was dismissed in October 2019 following an incident during a school inspection. H, who had over 12 years' exemplary service with Ofsted, admitted he brushed rainwater off the top of a pupil's head and touched his shoulder while asking after his welfare. The school reported this to Ofsted as inappropriate conduct, leading Ofsted to initiate disciplinary proceedings against H.
Although the dismissing officer acknowledged that the incident did not constitute a safeguarding concern, she deemed the physical contact "inappropriate" and concluded that H should have known better than to initiate uninvited physical contact with a pupil.
Ofsted had no formal policy prohibiting such physical contact or any disciplinary rules defining what type of physical contact might be deemed misconduct. H maintained that his actions were appropriate in the circumstances and expressed willingness to undergo training, but he did not accept that his conduct amounted to gross misconduct. Ofsted interpreted this as a lack of remorse, and elevated the outcome to summary dismissal for gross misconduct.
The court decisions
H challenged his dismissal, bringing claims of unfair and wrongful dismissal. An employment tribunal initially dismissed his claims, finding the dismissal "within the range of reasonable responses" available to an employer.
On appeal, the EAT found that H had been unfairly dismissed. In coming to this conclusion, the EAT found that Ofsted had not provided clear guidance or training regarding physical contact with pupils, and there was no "no-touch" policy. H had not been adequately forewarned that such conduct could lead to dismissal and this could not have been obvious to him.
The EAT also noted procedural shortcomings in the disciplinary process, including Ofsted's failure to disclose key documents to H for consideration in the disciplinary hearing, including the response from the Local Authority Designated Officer (LADO), the complaint submitted by the school under inspection or the pupil's statement.
The Court of Appeal upheld the EAT's decision, reaffirming that the dismissal was unfair due to the absence of clear policies and on grounds of procedural unfairness.
Importance of clear policies, guidelines and training covering staff conduct
This judgment highlights the importance of employers providing explicit guidelines in the form of policies backed by training, particularly where matters are treated very seriously by the employer and breaches of the policy may result in disciplinary action against an employee.
If a course of action may lead to dismissal this should be made clear either in the specific policy relevant to that issue or in the disciplinary policy under the list of serious disciplinary breaches that may lead to dismissal.
Failure to disclose key documents in a disciplinary process may result in an unfair dismissal
Employers should ensure they follow fair disciplinary procedures. This will usually include providing the employee with a copy of all the evidence the employer will rely upon when making a decision on the outcome of a disciplinary hearing.
In this case key documents were withheld from the employee but were considered by the disciplinary officer in the decision to dismiss. The school under inspection sent a lengthy complaint to Ofsted about the inspection and included a highly charged description of the incident between H and a pupil. H had alleged that the impetus behind the complaint might have been the school's animosity towards Ofsted. The Court of Appeal considered the pupil's statement and the school's complaint letter would have supported that view, but H had been deprived of the opportunity to make those points because he did not have access to the relevant documents.
Lack of remorse will not usually increase the seriousness level of alleged conduct
The Court of Appeal stated that a lack of contrition and insight on behalf of an employee will not warrant dismissal or "bump up" a sanction to dismissal if the actual conduct complained of does not warrant dismissal in the first place. H had told Ofsted he would not repeat his actions again given the stress it had caused and offered to attend training; in light of this attitude the court felt the necessary result (preventing a re-occurrence of the behaviour) had been achieved.
The court commented that the presence of remorse in disciplinary proceedings may lead an employer to reduce the level of a sanction, but this does not mean that a lack of remorse increases seriousness.
Referring to "loss of trust and confidence" in misconduct dismissals
The Court of Appeal commented that a reliance on "a loss of trust and confidence" cannot justify dismissal for misconduct unless the employee has carried out conduct sufficiently serious to have damaged or destroyed the employer's trust and confidence in them.
The court noted that there may be cases of less serious misconduct where a persistent failure on the part of the employee to recognise that they have done anything wrong means that there is a real risk that they will commit more serious misconduct in the future and in which dismissal might be justified.
The judgment makes clear that a decision to dismiss by reason of conduct should arise from the seriousness of conduct in question rather than relying on a loss of trust and confidence.
Can reputational risk or the reactions of a third party justify dismissal?
The court also commented that reputational harm cannot be a standalone basis for a dismissal on the grounds of conduct. The misconduct must in itself be serious enough to warrant dismissal.
Where reputational harm is taken into account in the disciplinary process, this should be a foreseeable consequence of the misconduct. The judgment also notes: "It might well be unfair to hold third party reactions against an employee if these were based on a misrepresentation or misunderstanding of what the employee had done or involved an unjustifiable view about the gravity of the employee's conduct."
Seeking legal advice
There is often an increased risk of claims in cases where an employee's career and professional reputation may be impacted by a disciplinary decision. Because of this, employers should seek specialist legal advice when considering conduct allegations where there are allegations of breaches of professional boundaries, safeguarding allegations (including low level safeguarding allegations) and considerations of harm to reputation and relationships with key stakeholders and partners.
Wrigleys' employment team regularly advises education, faith and charity clients working with children and vulnerable people and is well placed to advise on sensitive and nuanced cases of this kind.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
