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Articles Employment 1st Sep 2023

Importance of notifying employees of gross misconduct rules

In Mr A Hewston v OFSTED, the EAT considered the fairness of a dismissal for gross misconduct in the context of the employee having no indication from any policy or guidance that his conduct might amount to gross misconduct.

Mr Hewston was a School Inspector and on one visit a group of school children came in soaking from the rain. He brushed rainwater off the head of one child and put his hand on the child’s shoulder.

The school complained to OFSTED about this conduct and, after an investigation, Mr Hewston was dismissed without notice for gross misconduct (making physical contact with a child). There was no “no touching” policy in place at OFSTED and it was accepted that here was no harm intended to the Child.

The Tribunal found that the dismissal fell within the range of reasonable responses and was fair.

The EAT overturned the Tribunal’s decision, finding that:

  • Whilst it is understood that an employer does not need to set out in its disciplinary policy every conceivable type of behaviour that might amount to gross misconduct, “it is not fair to dismiss an employee for conduct which he did not appreciate, and could not reasonably have been expected to appreciate, might attract the sanction of dismissal for a single occurrence”.
  • Physical contact with a child was not on the list of gross misconduct offences in the employer’s disciplinary policy, there was no other document that addressed the issue of physical touch or indicated that there was a no-touch policy or gave guidance on the circumstances in which touch would or would not be regarded as permissible.
  • The failure to provide Mr Hewston with the following documents was unfair:
    • The written account of the pupil involved
    • The school’s complaint to OFSTED
    • The record of the determination of the Local Authority Designated officer (LADO)

This was particularly the case as the school’s complaint “glossed the child’s own words to a degree”, so it was important that the employee saw the original account.

This case is a reminder to employers that whilst they cannot be expected to identify every potential type of gross misconduct in its Disciplinary Policy, if the nature of its work is such that it takes a zero tolerance approach to conduct that might in other contexts not amount to gross misconduct, it needs to make that clear to employees.

See the case of Mr A Hewston v OFSTED here.

If you have any queries in relation to this article, please contact a member of our Employment Law team.

Read the other topical articles from our September Employment Law Update:

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

Author: Rena Magdani

Partner & National Head of Employment, Pensions & Immigration

Matt McBride

Author: Matt McBride


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