The recent Court of Appeal judgment in Hewston v Ofsted serves as a reminder to employers of the importance of using policies to set clear workplace standards. It also shows that, if an act isn’t misconduct, an employer cannot throw other factors (such as reputational damage and a lack of ‘insight’) into the mix to bump it up. In this case, the Claimant, an experienced Ofsted inspector with a clean disciplinary record, was summarily dismissed after touching a pupil’s forehead and shoulder to remove rainwater. 

Touching a pupil was not listed as an example of gross misconduct in the Respondent’s policies, there was no inappropriate motive behind the touching and the Respondent failed to provide the Claimant with several key documents during the disciplinary process, including the pupil complaint and the school’s report into it. 

Upholding the Employment Appeal Tribunal’s finding of unfair dismissal, the Court of Appeal gave a useful restatement of the principles applying to conduct dismissals:

• Examples of gross misconduct are generally listed in disciplinary policies. If something is not included in the list, this does not automatically mean that an employer cannot summarily dismiss for it.
• However, if the act is unlisted, it will be critical to the fairness of any dismissal to consider whether the employee could reasonably expect the employer to regard the act as serious misconduct having regard to the nature of the act and the surrounding circumstances. In this case, it was held that the Claimant could not reasonably have expected the Respondent to regard the act as serious misconduct given the context. 
• An employer should not be able to bump up the seriousness of conduct which is not capable of justifying dismissal just because the employee failed to show contrition. Given the conduct was not capable of justifying dismissal, the Claimant’s lack of contrition could not ‘bump up’ the seriousness of the conduct. 
• Loss of trust and confidence and the risk of reputational harm can be a relevant factor in reaching a disciplinary sanction but “it cannot be a stand-alone basis for such a decision; there must at least be some misconduct”.
• Employees should be provided with copies of all documents relevant to anything in dispute in the disciplinary process prior to any decision being reached.