The Court of Appeal recently handed down its decision in Hewston v Ofsted [2025] EWCA Civ 250, a case that provides important lessons for employers on misconduct, gross misconduct and fair disciplinary processes.
Background
Mr Hewston, an inspector employed by Ofsted for over 12 years with an unblemished record, was dismissed following a complaint by a school that he had brushed rainwater from a pupil’s forehead and touched the pupil’s shoulder during an inspection.
The Local Authority Designated Officer recommended training rather than formal sanction. Ofsted nonetheless investigated, concluding that the physical contact was inappropriate and amounted to gross misconduct, citing damage to trust and reputation and Mr Hewston’s lack of remorse as aggravating factors.
As a result, Mr Hewston was summarily dismissed for gross misconduct.
Tribunal and Appeal History
The Employment Tribunal (ET) found that the dismissal was fair. It accepted Ofsted’s view that the conduct was inappropriate and sufficiently serious to undermine trust and confidence, particularly in light of Mr Hewston’s refusal to acknowledge any wrongdoing.
The Employment Appeal Tribunal (EAT) allowed the appeal, holding that the dismissal was substantively unfair as Mr Hewston had no notice that his actions could amount to gross misconduct. There was no policy, rule or training prohibiting the type of physical conduct in question. The EAT also found procedural unfairness, as Ofsted had failed to disclose key documents, including the pupil’s statement, depriving Mr Hewston of the opportunity to mount an effective defence.
The Court of Appeal upheld the EAT’s decision, confirming that the dismissal was both substantively and procedurally unfair.
Court of Appeal’s Key Findings
The Court of Appeal’s key findings were as follows:
Notice of Rules / Gross Misconduct
Employers cannot fairly dismiss for conduct unless the employee had reasonable notice (via policy, rule, or training) that such behaviour could amount to gross misconduct. Ofsted had no “no-touch” rule or safeguarding policy prohibiting such conduct and dismissal was therefore outside the band of reasonable responses.
Role of Attitude, Insight, and Remorse
Lack of contrition can be relevant when assessing sanction, but cannot convert conduct which is not inherently serious into conduct justifying dismissal. Employers must distinguish between aggravating an already serious offence and “bootstrapping” minor misconduct into dismissal territory.
Procedural Fairness
Fairness requires that employees accused of misconduct are given access to key evidence, including complainant statements, unless there is a compelling reason not to disclose them. Ofsted’s failure to provide the pupil’s statement and other core documents was a fundamental procedural defect.
Trust, Confidence and Reputational Harm
While these are legitimate considerations, they must be grounded in the underlying seriousness of the misconduct: they cannot be relied upon as free-standing justifications for dismissal.
Legal and Practical Significance
This judgment is a strong reminder that substantive fairness requires dismissal to fall within the “band of reasonable responses”. Employers cannot assume that a dismissal will be fair if the employee has not had clear notice of the rules. Where conduct is not obviously serious, a dismissal is unlikely to be fair unless the employee has been specifically warned, through policies or training, that such behaviour could constitute gross misconduct.
Equally important is the Court of Appeal’s emphasis on procedural standards. An employer who withholds evidence (particularly statements from complainants) risks undermining the entire process. Even where there are safeguarding sensitivities, the employer must balance these against the employee’s right to know the case they must meet. Procedural failings of this kind will almost inevitably result in a finding of unfair dismissal.
This case also highlights the need for training and clear communication of professional boundaries, particularly in safeguarding contexts. Had Ofsted provided Mr Hewston with clear guidance that even sympathetic physical contact with pupils was prohibited, the outcome may have been different. This case demonstrates that a lack of clear rules leaves employers vulnerable to claims, even where reputational risks are high.
Lastly, the Court of Appeal reinforced the importance of proportionality. Dismissal should be reserved for conduct that is sufficiently serious enough in itself to justify dismissal, and employers should consider lesser sanctions where conduct does not clearly fall into gross misconduct.
Lessons for Employers
Employers should therefore take steps to ensure that disciplinary policies clearly define what amounts to gross misconduct and that these rules are properly communicated to staff. Sensitive areas such as safeguarding, professional boundaries, and reputational risk require particular clarity. Policies alone are not enough — regular training should be provided, and records should be kept to demonstrate that employees have understood the standards expected of them.
When disciplinary proceedings arise, it is essential that charges are drafted with precision and tied to the breach of a particular rule or policy. Evidence should be disclosed to the employee in full, save where there is a compelling reason to withhold it. Failure to do so risks a finding of procedural unfairness.
Employers must also be cautious about relying too heavily on abstract concepts such as “loss of trust and confidence” or reputational harm. While these may legitimately aggravate misconduct, they cannot justify dismissal in the absence of conduct serious enough to warrant it.
Sanctions must be proportionate and defensible, and dismissal should not be imposed where a warning or training would suffice.
For more information on the issues discussed in this article, contact Rianna Billington Purvis or call 020 7465 4300
This article featured in our Winter edition of ‘IN CASE’, our Employment newsletter for HR Directors. Click here to read more or subscribe.
