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In a judgement delivered on the 14th of March 2025, the Court of Appeal agreed with the Employment Appeals Tribunal that an Ofsted inspector was unfairly dismissed after brushing water of a child’s head during a school inspection.
In doing so, they restated important principles applying to conduct dismissals. These are important for both employers and employees alike when considering a case of potential misconduct and unfair dismissal.
1: Would an employee reasonably regard an action as misconduct?
Examples of gross misconduct are normally listed in disciplinary policies, though since these lists are not exhaustive, an employer may dismiss an employee for an action not listed.
However, in such cases, it should be considered whether the employee could have reasonably regarded their behaviour to amount to misconduct.
In the case of Hewston, the Claimant argued that there was a lack of disciplinary rules clarifying that his conduct would lead to dismissal, an argument accepted by the Court of Appeal.
2: How does an employee’s failure to reflect on their actions relate to unfair dismissal?
The dismissal letter sent to the Claimant states his ‘concerning lack of contrition’ as the reason the Claimant’s arguments could not affect the outcome of the hearing.
However, bearing in mind the dynamics of a particular situation, an individual’s temperament, and the stress of a disciplinary hearing, Underhill LJ stated that, as a general proposition, it is difficult to see how this could be enough to ‘bump up’ the seriousness of conduct.
In other words, the conduct in of itself should amount to misconduct, regardless of whether they reflected on their conduct or showed contrition.
This was particularly true where the Claimant’s conduct is not of a kind to imply ‘a real risk of serious misconduct in the future.’
3: Dismissal for misconduct based on loss of trust and confidence in an employee, or the risk of reputational harm.
Loss of trust and confidence, and the risk of reputational harm were recognised as relevant factors, but by themselves are not sufficient to justify dismissal.
This was recognised by the Court of Appeal in Hewston, who described the Employment Tribunal’s references to trust and confidence as ‘possibly misleading’ in the context of dismissal for misconduct. The reason being loss of trust and confidence cannot justify dismissal for misconduct in of itself.
The same is true for the risk of reputational harm: though a significant factor, it ‘cannot be a stand-alone basis’ for a disciplinary decision.
4: Employees’ need to be provided with all relevant documents.
The Claimant questioned the fairness of the dismissal procedure, claiming that he had been shown neither the complaint from the school nor the incident report recording the pupil’s complaint.
This was accepted by the Employment Appeals Tribunal and Court of Appeal, with the Court of Appeal’s judgement re-iterating that employees should be provided with copies of all documents relevant to anything in dispute in the disciplinary process before any decision is reached.
