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20 March 2025
Issue: 8109 / Categories: Legal News , Employment
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School inspector wins case

A former Ofsted inspector sacked for brushing rain from a child’s head was unfairly dismissed, the Court of Appeal has held in a unanimous ruling

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’.

Issue: 8109 / Categories: Legal News , Employment
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MOVERS & SHAKERS

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

From first-generation student to trailblazing president of the London Solicitors Litigation Association, John McElroy of Fieldfisher reflects on resilience, identity and the power of bringing your whole self to the law

Clarke Willmott—Elaine Field

Clarke Willmott—Elaine Field

Planning and environment team expands with partner hire in Manchester

Birketts—Barbara Hamilton-Bruce

Birketts—Barbara Hamilton-Bruce

Firm appoints chief operating officer to strengthen leadership team

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