The Employment Appeal Tribunal’s decision to rule Ofsted inspector Andrew Hewston’s dismissal unfair was plainly not going to escape the attention of the press, when the reason for the dismissal was taken into account. But if we leave aside the understandable Man on the Clapham Omnibus reaction, or indeed any converse thought that Mr Hewston had taken leave of his senses in an era when a pupil is never too far from an incident report form, what lessons arise here for employers? 
Having so acted when a group of pupils came inside from heavy rain, Mr Hewston was suspended three days later, questioned at a disciplinary hearing ten days later, and summarily dismissed six days afterwards. Mr Hewston did express regret for what had happened, but did not wish to concede guilt in the face of a threat of dismissal, remaining adamant that what he did was a gesture of care. The Employment Tribunal that heard his claim two years later decided he was fairly dismissed
Pausing for a moment, it is common practice for employers to make it clear, via non-exhaustive lists in employment contracts, handbooks or policies, what types of conduct might justify summary dismissal for gross misconduct. Theft and fighting are obvious. Wrongful acts relating to specific workplace rules and procedures, such as falsifying clock cards or failure to wear full protective clothing in a hygiene sensitive environment, are sensible to identify as such. When it comes to determining whether a dismissal falls within the range of reasonable responses open to a reasonable employer, and may thereby be deemed fair, an incomplete or ambiguous list of instances can prove costly. 
This is partly what saved Mr Hewston in the EAT. He had never been forewarned, whether via a written policy, training or otherwise, that a single incident of physical contact of this sort with a pupil – not an assault of any kind, or anything giving rise to safeguarding concerns – could result in his dismissal. The fact that three documents relied upon by the dismissing officer were not provided to him, in clear disregard of natural justice, also led the EAT to conclude that on this occasion, dismissal fell outside that range of reasonable responses. 
The first instance tribunal properly took note of its legal duty not to substitute its own view for that of the employer. However, it failed to acknowledge that Mr Hewston had never been placed on fair notice that such conduct might lead to dismissal, This was considered a principled error of law. For what it is worth, there was no express reference to “perversity” in the context of fact finding, the facts having evidently not been in dispute. 
Whatever led Ofsted not to double check its own policies in this case, and ensure that there was forewarning and fair notice, may never be known. But it will have been a salutary lesson. 
Do you have a potential dismissal on your hands, where there might be an unexpected loophole? Or do your employment contracts and policies need a review to guard against problems of this kind? Get in touch now. Contact David Cooper on 0121 325 5402 or via . 
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