The Court of Appeal has ruled that an Ofsted Inspector who brushed rainwater out of a 12-year-old schoolboy’s hair was unfairly dismissed and that his behaviour was incorrectly deemed inappropriate by the Employment Tribunal. The Court’s judgement in the case of Hewston v Ofsted [2025] EWCA Civ 250 has put the onus on employers that work with vulnerable persons to provide proper training to clearly set out the behaviour that is expected of staff.

Mr Hewston had been employed as an Ofsted Inspector since 2007 with an unblemished disciplinary record. On 8^th October 2019, Mr Hewston was carrying out a school inspection in the midst of a rainstorm. In a “caring” gesture, Mr Hewston, accompanied by the Lead Inspector, approached a group of boys returning from a PE lesson and rubbed the head and shoulders of the shortest pupil to brush off rainwater. The pupil felt uncomfortable with this act, and a teacher who observed the incident thought it was “inappropriate” in the context. The pupil subsequently completed an incident form resulting in the school issuing a letter of complaint to Ofsted concerning Mr Hewston’s conduct.

Consequently, a disciplinary hearing was initiated. Mr Hewston argued that the complaint had been blown out of proportion and revealed that the school did not get on well with Ofsted, expressing that they had been looking for a reason to pick on an inspector. He maintained that the gesture was not excessive but had been sympathetic in nature and that he meant no disrespect to the child. Significantly, Mr Hewston also drew attention to the fact that Ofsted did not have a “no touch” policy and in fact inspectors had been advised on the value of “engagement through touch.” Despite this, there was no dispute that the touch had been uninvited, and Mr Hewston reiterated that he would never do such a gesture again due to the stress it had caused him.

The following week Ofsted dismissed Mr Hewston, reasoning that whilst the incident did not amount to a breach of their safeguarding protocol, it amounted to an act of gross misconduct which had negatively impacted Ofsted’s reputation. In his dismissal letter, Ofsted described Mr Hewston’s allegation that the school had fabricated the complaint as showing a “lack of self-awareness” and highlighted that Mr Hewston could not be deemed reliable to maintain professional boundaries with children following the incident.

Mr Hewston accordingly raised a claim against Ofsted with the Employment Tribunal for unfair dismissal. The Tribunal found that Mr Hewston had acted unprofessionally with a “very grave demeanour” which had resulted in his relationship of trust and confidence with Ofsted breaking down irretrievably. It followed that in any other situation it would be deemed an abuse of a child’s dignity for an unknown adult to brush water off their forehead. The Tribunal’s judgement reinforced that Inspectors must exemplify the highest standards for a regulated environment.

However, Mr Hewston subsequently appealed this decision to the Employment Appeal Tribunal (EAT), following which the EAT overturned the Tribunal’s initial decision. The EAT held that Mr Hewston had in fact been unfairly dismissed by Ofsted, and their rationale was based on two grounds:

1. Substantive unfairness – As previously mentioned, Ofsted did not have a “no touch” policy in place and had not published rules that indicated contact with pupils would be regarded as gross misconduct. The EAT highlighted that there was a need in safeguarding cases to consider whether the allegations had been properly covered in disciplinary rules. As Mr Hewston had not been required to undertake relevant training, it would be fundamentally unfair to sanction him for breaching a policy he was unaware of.
2. Procedural unfairness – Mr Hewston’s dismissal could not be considered fair as he was denied the opportunity to review essential documentation during the disciplinary process, such as the school’s letter of complaint and the pupil’s written account of the incident.

Either of these two grounds would have resulted in the unfair dismissal of Mr Hewston.

Ofsted challenged this decision by appealing to the Court of Appeal; however, they unanimously dismissed Ofsted’s appeal and supported the EAT’s judgement, emphasising that Mr Hewston had been given no guidance and that it was unreasonable to expect him to recognise that his conduct could be considered gross misconduct. There was no evidence that inappropriate motivation was behind Mr Hewston’s conduct. Despite the impact on Ofsted’s reputation, it was held that disciplinary action was not appropriate, but that instead further training was required.

Consequently, it is vital that employers provide appropriate training and detail the conduct that is expected of employees when working with vulnerable people. Comprehensive policies must be established to ensure that employees are reasonably aware of the behaviour that amounts to gross misconduct and the disciplinary measures that are enacted in a breach of policy.

Furthermore, this case reiterates the necessity for a fair disciplinary procedure to be followed by employers. It is crucial that an employee is given the right to fully respond to any allegations made against them and be referred to the policy that they are supposedly in breach of. When considering misconduct allegations, disciplinary actions should be proportionate and handled with the appropriate sensitivity.

Should you have any queries or would like any further information on disciplinary/dismissal procedures or other employment related matters, please contact our Employment Law department on 0289020050