Andrew Hewston was summarily dismissed for gross misconduct after the incident in October 2019. The Employment Appeal Tribunal (EAT) found in favour of Hewston on the ground of substantive unfairness since it could not have been obvious to him that what he did was conduct for which he could be dismissed. This was because there was no safeguarding issue, Ofsted did not have a ‘no-touch’ policy and there was no policy or guidance given in training on the subject of touching students.
On appeal to the Court of Appeal, in Hewston v Ofsted [2025] EWCA Civ 250, Ofsted argued the tribunal judge had rightly considered the substantive misconduct and Hewston’s insistence he did nothing wrong as showing lack of insight that undermined Ofsted’s trust in his professional judgment.
However, Lord Justice Underhill, delivering the main judgment, noted: ‘I find it 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… It is reinforced by the fact 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… it is inevitable that some employees will be overly defensive.
‘In some cases also, where the issue is whether what was done constituted misconduct, an employee who 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.’
Hewston was represented by Unison Legal Services. Christine McAnea, Unison general secretary, said Hewston’s ‘career was cruelly and unnecessarily cut short’.
