The Employment Appeal Tribunal's (EAT) decision in Hewston v OFSTED is a timely reminder of several important issues in the field of unfair and wrongful dismissal. For most employers, unless dismissing for gross misconduct, unfair dismissal, given the potential value of an award (the lesser of a year’s pay and £105,707), is the primary concern. Having a potentially fair reason, with dismissal falling into the band of reasonableness, and following a fair process are all key elements to the ultimate decision.
The decision in Heston illustrates the need for a careful and thorough process.
Mr Hewston was an OFSTED inspector engaged in a school inspection with a colleague. During the inspection, a group of children came in from the rain, and Mr Hewston touched the youngest child in the group by brushing rainwater off the child’s head. He also put his hand on the child’s shoulder. Following a complaint by the school, an investigation, and a disciplinary process, Mr Hewston was summarily dismissed by OFSTED. An employment tribunal dismissed his claims for both unfair and wrongful dismissal. He appealed to the EAT which upheld his appeal.
An investigation was undertaken, and a report prepared which recommended disciplinary action. Mr Hewston was provided with a copy of the investigatory report but was not given a copy of either the school’s complaint, the Local Authority Designated Officer (LADO) report, or a copy of the statement taken from the child who had been touched, which were all seen by the disciplining officer. It was also evident that there was no clear policy, or direction, on the issue of touching and that almost any form of touching of a child by an inspector might lead to summary dismissal. Mr Hewston’s evidence was that his training suggested that the appropriate use of touch could be positive, in that it demonstrated care.
Disciplinary policies and the ACAS Code
The EAT considered the purpose and function of the ACAS code and noted that it did not require an employer to cite every possible form of misconduct that might result in summary dismissal. The EAT also noted that the principle of fairness is 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”. It noted that in many cases it will be obvious what types of conduct will attract the sanction of dismissal but “there are other types of conduct where this is not inherently obvious, and in respect of which the stance of different organisations may differ, depending on circumstances peculiar to […] their activities or their employees.” The examples given were not sufficient to put Mr Hewston on notice that he might be dismissed for a single act.
Getting the allegations right
OFSTED had also created other problems for itself as it argued that he had been dismissed not because of his conduct but due to his subsequent attitude to it. There were four complaints made against Mr Hewston; all of which related to his conduct during the “touching” incident. During the various disciplinary hearings, Mr Hewston had not accepted that he had acted inappropriately. The EAT noted that OFSTED had clearly set out their stall at the disciplinary hearing – that he was being disciplined for the touching incident. It noted that if it became clear in the course of disciplinary proceedings that an employee’s attitude to their conduct amounted to a further act of misconduct, for which they might be disciplined, then the employer should either amend the allegations or bring additional disciplinary proceedings. Similarly, if during the course of a disciplinary hearing, new evidence or facts come to light that need to be investigated, the hearing should be adjourned, the matter investigated, and the investigation outcome be provided to the employee before proceedings with the disciplinary process.
The importance of providing all relevant documents to Mr Hewston was noted. It is not sufficient for an employee to be aware of the “broad factual matrix” of the allegations against him. Not providing relevant documents prevents an employee or their companion from being able to make relevant submissions to their employer.
Matters to reduce the sanction imposed
The EAT also considered the significance of the length of service. It noted that length of service can be relevant either way to the sanction imposed, but that a Tribunal needs to consider whether and to what extent length of service is relevant, and to what degree it has been taken into account.
Finally, the EAT considered Mr Hewtson’s appeal against his summary dismissal. Unlike the test for unfair dismissal, a tribunal must make its own objective finding and evaluation of the facts. It also noted that, although the majority of a case will be concerned with the issue of unfair dismissal, the issue of wrongful dismissal needs to be distinctly and sufficiently set out.
Important issues for employers
Whilst the decision does not create new law, it does remind employers of several important issues:
The need to ensure that disciplinary policies clearly set out the types of conduct which may result in summary dismissal.
Disciplining officers should, when making their decision, consider carefully:
a. If employees understand the broad nature of what they can and cannot do. Is it inherently obvious that the particular conduct in question could result in summary dismissal?
b. What charges were made against the employee at the outset – do they justify dismissal?
c. If other issues have arisen during the course of the hearing, do further allegations need to be specifically addressed?
Has the employee been provided with all the documents available to the disciplinary officer?
If the decision is to dismiss for gross misconduct, it will be necessary to ensure that any exculpatory issues such as length of service, an apology, etc. are taken into account and their influence on the decision explained.
If you require legal advice, or support through a disciplinary or grievance process, our Employment team can assist. We understand the pressures HR and management teams face, and we offer a complete solution to your day-to-day or larger strategic HR issues. Please get in touch today on [email protected].
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