Employment tribunal and court judgments | March 2025

Mr Hewston was employed as an inspector for Ofsted. During a routine school inspection, he brushed rainwater off a student’s head and lightly touched their shoulder before asking if they were OK. The school reported the incident to Ofsted, amongst other general complaints about the inspection.

A disciplinary process was launched. During the disciplinary hearing, the employee stated that although he did not consider the incident fell within the definition of gross misconduct, he would not do it again because of the stress it had caused. The disciplinary officer took that as evidence of a lack of remorse. The disciplinary officer accepted that there was no safeguarding concern, but that the employee should have known not to initiate physical contact with a student. By doing so, he brought his employer into disrepute and breached professional boundaries. He was dismissed for gross misconduct. The employee challenged the dismissal by bringing an unfair dismissal claim, claiming it was an overreaction by Ofsted to a compassionate gesture.

The Employment Tribunal dismissed Mr Hewston’s claim, ruling the dismissal was fair, and within the range of reasonable responses. The tribunal acknowledged the lack of intent in the physical contact but emphasised the importance of maintaining professional boundaries. The EAT disagreed and allowed Mr Hewston’s appeal, finding it would not have been obvious to the employee that he could expect to be dismissed for touching the student because (as admitted by the disciplinary officer) the incident raised no safeguarding issues, the employer had no “no-touch” policy, and there had been no relevant training on physical touch. The EAT also found that the dismissal was procedurally unfair, because the employee had not been given copies of the complaints or statements made about him in the initial report by the school, during the first stage of his disciplinary.

Ofsted appealed against the EAT judgment, claiming the EAT had placed too much importance on the absence of published guidance or disciplinary rules on physical contact or touch. Ofsted also claimed the EAT failed to appreciate that the conduct for which Mr Hewston was dismissed was both the substantive conduct, and also his insistence that he had done nothing wrong.

The Court of Appeal dismissed the appeal, finding the EAT was correct to question whether it was reasonable, in a case where there was no safeguarding concern, to consider the importance of the absence of guidance, training or rules on physical contact. It found it would be hard to see how it could ever be fair for a dismissal to take place because of a lack of remorse by an employee for conduct which in itself did not justify dismissal.

The Court of Appeal also commented on reputational harm, warning that such an argument can be a relevant factor in any dismissal, but it cannot be a stand-alone reason for dismissal without actual misconduct.

As for procedural unfairness, the Court of Appeal judgment reminds readers that the starting point is that in any case where an employee is accused of misconduct against another person, it is obviously good practice to show them that person’s complaint unless there is some good reason not to.

Mr Hewston’s dismissal was found to be unfair.

Employers working in regulated or sensitive safeguarding spaces need to provide clear guidance and training, to ensure employees are aware of their obligations and expected behaviours.

It is important that employers identify (and maintain focus on) a legitimate act of misconduct or gross misconduct before imposing disciplinary measures. Dismissals citing “lack of remorse” or “reputational damage” should be carefully considered, so as not to lose focus on a fair and reasonable assessment of the core element of the matter, i.e. the original act of misconduct which triggered formal disciplinary proceedings.

Mr Gourlay was employed by West Dunbartonshire Council. He was dismissed for gross misconduct. Subsequently, he brought claims for disability discrimination (failure to make reasonable adjustments) and victimisation, which were successful. It was found that the respondent failed to provide the claimant with items of office equipment which would have reduced the disadvantages experienced by him as he lives with multiple sclerosis. The respondent victimised the claimant by suspending him, dismissing him and refusing his appeal against dismissal.

At the point of the remedy hearing, the respondent accepted that the respondent’s discriminatory actions led to the claimant developing a severe depressive episode, rendering him permanently unfit for work.

The Tribunal made an award of financial loss up to retirement, but applied a reduction of 80% to the award, speculating that, (i) the claimant would have pursued ill-health retirement for other health-related conditions unrelated to the condition relevant to this claim before his natural retirement date, or (ii) the claimant’s employment would likely have come to an end before his retirement as a result of a breakdown in the working relationship, or by mutual agreement.

The Claimant appealed the decision to apply an 80% reduction to his compensatory award.

The appeal was upheld. The EAT found the Tribunal took the wrong approach to calculating compensation. It found that a reduction in future loss was only justified if a lawful dismissal would have had the same effect. There was no evidence that a fair dismissal for another reason would also have put Mr Gourlay in a similar situation where he was not able to work again. In addition, speculating that the unrelated health conditions would have led to early retirement was not based on any evidence and so was perverse. Accordingly, there had been a material error of law.

The EAT’s decision highlighted the necessity for compensation awards to be firmly grounded in evidence rather than speculation. The case emphasises the importance of accurately assessing the impact of discriminatory actions on an individual’s employment and health, ensuring that compensation reflects actual losses incurred.