Hello and thank you for joining our case of the week.  Our last update was our August Newsletter, where we looked at recent football controversies, changes to the law regarding tips and gratuities and the closure of a high street store that could affect hundreds of jobs. Those that missed it can find it here. This week, we’re looking  at an Ofsted inspector who was dismissed for brushing water off a child when they came in from the rain!

The Claimant, Andrew Hewston, was employed as a Social Care Regulatory Inspector at the Respondent regulator, Ofsted, since 2007. The incident which led to his dismissal occurred during an inspection on 8 October 2019. During his visit he noticed a group of children coming in from the rain. Showing concern for the child, he had brushed the water off their head and back. The school, noticing this incident, made a report to the Local Authority Designated Officer (LADO), stating that the behaviour and touching was inappropriate.

This led to an extended series of investigations by the LADO, culminating in a decision to suspend the Claimant pending further investigation. It is worth noting that this report included serious criticism of the regulator as a whole, along with wider accusations of Islamophobia which was not related to the Claimant. However, in this report, the statement made by the child, and other documentation provided by the school were not provided to the Claimant during or before the disciplinary process.

The disciplinary hearing was to take place regarding four core issues:

  1. That he touched a child without consent,
  2. That his actions were inappropriate and were contrary to Ofsted values and the Civil Service Code,
  3. His actions caused a breach of trust and confidence, and
  4. These actions had caused reputational damage to Ofsted.

Following this disciplinary process the Claimant was dismissed for gross misconduct. He brought his claim to the Employment Tribunal.

The ET, in the first instance, decided in favour of the Respondent and found that his dismissal had not been unfair. Citing the fact that the Claimant was expected to maintain the highest standards in dealing with children, the conduct described was a misuse of power which violated the child’s right to be treated with dignity. Emphasis was also placed on the fact that the Claimant did not view his conduct as inappropriate, believing that his actions were completely innocent and showed care for the child, and his lack of remorse and understanding was a breach of trust and confidence.

The Claimant appealed the decision. The appeal was brought on four grounds:

  1. The Tribunal had mistakenly found dismissal to be within the range of reasonable responses,
  2. The Tribunal had failed to consider the facts that the Respondent expected employees to refrain from physical touch, but had never informed them of this expectation or requirement through training. They had also failed to take into account the length of the Claimant’s good service and his apology for his actions,
  3. Failing to follow the ACAS Code of Practice in the disciplinary process, and
  4. That the Claimant could not be guilty of gross misconduct as they had not acted with the intention or gross negligence required for this type of dismissal.

The Employment Appeal Tribunal agreed. Allowing all points of the Claimant’s appeal, the case has been directed back to the Tribunal for rehearing. Emphasis was placed in the judgment on witness evidence which showed how the Respondent had never provided training on the subject and, when it had provided similar training, had failed to mention the restriction on any physical contact.

Takeaway Points

For those of us that aren’t government appointed regulators for education, there is still something to take away here! Training employees on what is expected of them is vitally important not just for mitigating issues during Tribunal claims, but also good practice for setting expectations in the workplace. It falls under the principle of natural justice that you can’t modify your behaviour to avoid breaking rules if you are unaware of what those rules are.

The other point worth mentioning is that proper procedure can make or break claims of this nature. Had the Respondent been clear with all the evidence in an open and upfront manner which allowed for them to consider the Respondent’s counterpoints, this claim may have been handled very differently.

If you or someone you know are dealing with any of the issues mentioned above, please contact a member of our team who will be able to assist.