Unfair dismissal: failure to make it clear the relevant conduct could lead to dismissal and withholding evidence during disciplinary proceedings

Unfair dismissal: failure to make it clear the relevant conduct could lead to dismissal and withholding evidence during disciplinary proceedings

The Court of Appeal has recently upheld the EAT’s decision that an employee’s dismissal was unfair because the employer had failed to make it clear that the relevant conduct could lead to dismissal for gross misconduct. There had been no policy, training or other prior warning making it clear that a single incident of touching a school pupil innocently could lead to dismissal. Further, the employer had unfairly withheld relevant evidence from the employee during the disciplinary process and had wrongly taken into account his lack of contrition, insight or remorse during the disciplinary process.

Misconduct: fairness principles

For a misconduct dismissal to be fair, the employer must have a genuine belief, based on reasonable grounds, having carried out such investigation as was reasonable in all the circumstances, that the employee is guilty of the alleged misconduct, and a fair disciplinary process must be followed. 

Under the relevant Acas Code: (a) an employer’s behavioural expectations of its staff, including any examples of gross misconduct, should usually be set out clearly in a written code of conduct or disciplinary policy and/or explained to its staff in training (¶2, 24); and (b) during the disciplinary process, the employee should ordinarily be given copies of any evidence being considered by the person(s) making the decision to dismiss (¶9).

Factual background

H was employed as an inspector by Ofsted, which is the independent regulator and inspector of schools. His role involved visiting school premises to perform inspections. Following one such inspection, the school made a wide-ranging complaint to Ofsted, which the tribunal later described as ‘scathing in its criticisms of the regulatory inspection generally, including an allegation that the inspectors were, by its nature, showing discriminatory Islamophobic perceptions’.

One part of the school’s wider complaint about the inspection referred to an incident involving H – a group of school children had come into the school soaking from the rain and H was alleged to have brushed rain water off the hair or forehead of one boy and put his hand on his shoulder.

This part of the school’s complaint was reported, as a matter of routine, to the Local Authority Designated Officer (LADO), whose role is to manage allegations against adults who work with children. Having considered the referral, the LADO decided that no safeguarding concerns arose from the incident and suggested that the proportionate response was ‘for [Ofsted] to investigate this matter internally with [H] with consideration to raising awareness of professional boundaries and any training that may be required in support of this’.

Disciplinary process

A disciplinary process was triggered on the basis that H had ‘without consent or invitation touched a child on the head and shoulder’, and these actions were ‘inappropriate and…contrary to Ofsted core values, professional standards and the Civil Service Code’, had ‘damaged Ofsted’s reputation’ and breached ‘[Ofsted’s] trust and confidence in [H’s ] role as an Ofsted inspector’. However, when it invited H to a disciplinary hearing, Ofsted did not share the LADO report or the statement of the boy he had touched with H, because it took the view that these belonged to the LADO and were not to be shared with H.

H argued during the investigation that it seemed Ofsted were advocating that it had a ‘no touch’ policy and that this ‘went against the content of lectures given at [previous] Ofsted conferences…that suggested touch was a positive tool to use in social care’. However, Ofsted denied throughout that it had a ‘no touch’ policy.

H was summarily dismissed for gross misconduct. The dismissal letter confirmed that the decision to dismiss was primarily due to the fact H ‘had failed to exercise good inspection judgment by initiating physical contact with a student when it was not invited or expected…[and this touch] was a grave error of judgment on your part…’. The dismissing manager went on to express concern about H’s lack of understanding, self-awareness, contrition, expressed doubts about H’s professional judgment and noted the impact H’s actions had on Ofsted’s reputation (via the referral to the LADO and complaint from the school). The dismissing manager concluded that they had ‘no confidence in [H] sufficiently understanding the severity of [his] error and as such will not initiate uninvited and unwarranted contact in the future’.

Legal background

The employment tribunal initially dismissed H’s unfair dismissal and wrongful dismissal claims, but H successfully appealed to the EAT. In relation to H’s unfair dismissal claim, the EAT held that the tribunal had erred when it failed to adequately consider the fact that H had not been forewarned by his employer, either by a written policy, training or otherwise, that a single incident of physical contact of this sort (which was not found to give rise to any safeguarding issue) could result in his dismissal. Ofsted had denied the fact it had a ‘no touch’ policy and did not seek to rely on any written policy, or training.

Therefore, the question for the tribunal was whether Ofsted was entitled to take the view that it did not need to be spelled out that what H did was conduct for which he could expect to be dismissed, because it should have been obvious, from its nature, that it was. Although neither the Acas Code, nor previous case law, require an employer to identify every type of conduct which it regards as gross misconduct justifying dismissal for a single transgression, there is an underlying principle of fairness that it is ‘not fair to dismiss an employee for conduct which he did not appreciate, and could not reasonably have been expected to appreciate, might attract the sanction of dismissal for a single occurrence’. The conduct H was accused of (a single uninvited touch which did not involve safeguarding concerns) was not so obviously gross misconduct that it did not need to be spelled out in writing that a single instance could lead to dismissal.

Further, the tribunal had erred when it failed to find that Ofsted’s failure to give H, in advance of the disciplinary hearing, copies of three documents seen and relied upon by the dismissing officer (i.e. the text of the school’s complaint, the text of the child’s statement, and an email from the LADO) rendered H’s dismissal unfair. The Acas Code required copies of any written evidence, including any witness statements, to be shared with the employee, and the EAT has previously strongly emphasised the importance of the employee being given witness statements on which the employer was going to rely in a fair disciplinary process.

Finally, in relation to wrongful dismissal claim, the EAT held that tribunal did not make a clear finding that it objectively considered, on the evidence before it, that H’s conduct amounted to a repudiatory breach of contract and/or as to why.

The EAT took the relatively rare step of substituting a finding that H’s dismissal was unfair and quashed the tribunal’s decision in the wrongful dismissal claim. 
Ofsted appealed to the Court of Appeal, arguing, among other things, that the EAT had erred by:

• not properly considering that Ofsted’s reason for dismissing H was not just the physical touching of a pupil, but also H’s lack of contrition or insight during the disciplinary process; and

• to hold that if it would not in any given case be open to the employer to dismiss for the substantive conduct, then it could not be fair to do so because they had not shown contrition or remorse. 

Court of Appeal decision

The Court of Appeal unanimously dismissed the appeal and upheld the EAT’s decision. 

The leading judgment, Lord Justice Underhill (Vice-President of the Court of Appeal (Civil Division)) began by noting that: “…there has never been any suggestion of any improper motivation on the part of [H]: what he did was intended as a friendly act of sympathy and assistance”.

With regards to the touching incident, the Court held that the EAT had been “plainly right” to conclude that the tribunal had erred when it failed to adequately consider the fact that H had not been forewarned by Ofsted, either by a written policy, training or otherwise, that a single incident of physical contact of this sort (which was not found to give rise to any safeguarding issue) could result in his dismissal, and that H’s subsequent attitude did not make any difference to this analysis. In the absence of a ‘no touch’ policy or training on this issue, it was not reasonable for Ofsted to take the view that H’s conduct was of a kind which he should have realised would be regarded as warranting dismissal. 

On the question of whether H’s lack of contrition, insight or remorse during the disciplinary process could be taken into consideration by Ofsted when deciding to dismiss, the Court held, as a general proposition, that it was:

"…hard to see how in such a case it could be reasonable for the employer to bump up the seriousness of the conduct only because the employee fails during the disciplinary process to show proper contrition or insight”. 

The Court noted that “…how employees react to an allegation of misconduct is likely to vary greatly according to individual temperament and the dynamics of the particular situation. The stressful circumstances of a disciplinary hearing or interview are unlikely to be conducive to calm self-reflection, and it is inevitable that some employees will be overly defensive”. Further, where there is a question around whether the employee’s actions amount to misconduct, the employee “genuinely believes that it did not faces the dilemma that if they say that they would not do the same thing again they may be taken to be accepting guilt”. 

However, the Court recognised that there may be some cases where this general proposition did not apply, such as where a neat distinction between the seriousness of the substantive conduct and the employee’s subsequent attitude is difficult to draw, or where the employee persistently fails to recognise that they have done anything wrong and this means there is a real risk of more serious misconduct in the future.

The Court also upheld the EAT’s finding that the disciplinary procedure had been unfair because H had not been shown the pupil’s statement, the school’s complaint letter or the LADO response. The Court said that,

"in any case where an employee is accused of misconduct against another person it is obvious good practice to show him any contemporary record of that person’s complaint unless there is some good reason not to”.

In a supporting judgment, with which Lord Justice Underhill expressly agreed, Lord Justice Warby said that the risk of reputational harm may be a relevant factor in reaching a disciplinary decision, but said this “… cannot be a stand-alone basis for such a decision; there must at least be some misconduct”. Further, the mere fact of an adverse impact on reputation will not be enough. Some damage to reputation is a natural and foreseeable consequence of misconduct. Therefore,

"it might well be unfair to hold third party reactions against an employee if these were based on a misrepresentation or misunderstanding of what the employee had done or involved an unjustifiable view about the gravity of the employee’s conduct”.

Here, the allegation of reputational harm did not add clarity or indeed anything of significance to the disciplinary charges H faced. 

Hewston -v- Ofsted [2025] EWCA Civ 250