The Employment Appeal Tribunal has held, in the recent case of Hewston v Ofsted, that an experienced Ofsted inspector who was summarily dismissed after touching a pupil’s forehead and shoulder to remove rainwater, was unfairly dismissed.

The conduct itself was admitted by the claimant and an Employment tribunal initially decided that his dismissal was fair. This decision has now been overturned by the EAT for the following reasons:

• The claimant had not been provided with copies of key documents, including a statement by the child which had been seen by the dismissing officer, before the decision to dismiss him was taken.

 

• The respondent had no clear policy on the subject of touch, did not have a no-touch policy and, against that background “it was not fair to dismiss [the claimant] when he was not on fair notice that [his] conduct might attract [the] sanction [of dismissal]”.

 

• The tribunal had been wrong not to look at whether the respondent had considered the claimant’s representations regarding his long and unblemished record of service. 

The claimant’s claim for wrongful dismissal was remitted to a fresh tribunal as the tribunal’s original decision had failed to “distinctly and sufficiently address” this claim in its own right (separately from unfair dismissal). HHJ Auerbach in the EAT gave a reminder that the tribunal “must decide whether, in its view, taking account of any findings as to the employee’s intent, the effect of the conduct and/or other relevant circumstances, the employer was objectively entitled to treat the substantive conduct as having so damaged the ongoing relationship as to justify bringing it to an end.”