The recent case of Hewston v Ofsted provides employers a helpful reminder regarding cases of gross misconduct. The case focused on the dismissal of an employee by Ofsted and whether the employee’s actions amounted to gross misconduct capable of justifying summary dismissal. In particular, the EAT judgment, which was agreed by the Court of Appeal, sets out what conduct would justify summary dismissal.
1. Facts of the Case
The claimant was employed by Ofsted as an inspector responsible for assessing the quality of education in schools across the UK. During his employment, Mr. Hewston was accused of actions that Ofsted considered a violation of their strict codes of conduct. The conduct related to the claimant brushing rainwater off a child’s head and shoulder during a school inspection.
After conducting an internal investigation, Ofsted determined that Mr. Hewston’s actions amounted to gross misconduct, leading to his immediate dismissal.
2. The Employment Tribunal’s Initial Ruling
At first instance, the Employment Tribunal upheld Ofsted’s decision, agreeing that the actions of Mr. Hewston could indeed be classified as gross misconduct. It considered that his conduct was so egregious in nature that it amounted to a fundamental breach of the trust and confidence required in his role.
3. The Employment Appeal Tribunal’s Ruling
Mr. Hewston appealed the decision to the Employment Appeal Tribunal.
The EAT concluded that the tribunal had made an error in its assessment of the seriousness of Mr. Hewston’s conduct. The court emphasised the need for clear evidence of a breach of trust and confidence before gross misconduct can be established, particularly when considering the seriousness of the alleged actions. In this instance, the EAT found that the Tribunal had not sufficiently assessed the mitigating circumstances or considered whether a less severe sanction than dismissal could have been appropriate.
4. Key legal principles
The Hewston v Ofsted decision is important because it further clarifies the application of gross misconduct in employment law. The court reinforced that not every act of misconduct automatically qualifies as gross misconduct.
This ruling serves as a reminder that summary dismissals for gross misconduct should only occur in cases where the misconduct is sufficiently serious to justify the sanction of immediate dismissal.
Therefore, employers should conduct a thorough investigation to ensure that any dismissal for gross misconduct is backed by clear, objective evidence. Employers must be able to demonstrate that the misconduct is truly severe and warrants immediate termination of employment (e.g., because it undermines the fundamental relationship of trust and confidence between the employee and the employer).
