Court of appeal ruling on Mr Hewston’s unfair dismissal: Legal insights

28 March 2025

The recent Court of Appeal ruling on Mr Hewston’s unfair dismissal case provides significant insights into employment law. After being dismissed by Ofsted for allegedly touching a pupil, the case has now set an important legal precedent. This decision offers clarity on what constitutes gross misconduct and highlights the importance of fairness in dismissal procedures.

The Claimant, Mr Hewston an Ofsted inspector, was summarily dismissed after brushing water off the head and touching the shoulder of a pupil who had been caught in a rainstorm.

The incident was reported to Ofsted as inappropriate touching and disciplinary proceedings were instituted and as a result Mr Hewston was summarily dismissed for gross misconduct.

Mr Hewston presented a claim to the Employment Tribunal for both unfair and wrongful dismissal, the Tribunal dismissed the claims.

Mr Hewston appealed against the Tribunals decision to dismiss the claims, and the Employment Appeal Tribunal ‘the EAT’ upheld the appeal and found that Mr Hewston had been unfairly dismissed and remitted the claim to the Tribunal for determination of remedy.

Ofsted appealed the EAT’s decision in regard to the unfair dismissal claim and the Court of Appeal heard the appeal in October 2024.

The Court of Appeal dismissed Ofsted’s appeal and upheld the EAT’s decision in finding that touching a pupil was not listed as an example of gross misconduct, and the Claimant could not reasonably have expected the Respondent to regard it as serious misconduct given the context.

The Court of Appeal provided useful guidance on the principles to apply on conducting dismissals.

The Court of Appeal detailed, employers should include examples of gross misconduct in their disciplinary procedures; however, it is recognised that such examples are not exhaustive. In cases where the gross misconduct is not listed, this does not mean that the employer cannot summarily dismiss for it, but it will mean that it is critical to the fairness of any dismissal to consider whether the employee could reasonably except the employer to regard the act as serious misconduct, having regard to the nature of the act and surrounding circumstances.

The Court of Appeal also detailed that employees should be provided with copies of all documents relevant to the disciplinary process prior to any decision being reached and that the loss of trust and confidence and risk of reputational harm can be a relevant factor in reaching a decision, but it cannot be a stand-alone basis for such a decision.

This article was written by Gabrielle Scriven.