Hewston v OFSTED
The case of Hewston v OFSTED [2025] EWCA is a key example of how a seemingly minor incident can escalate into protracted legal proceedings in the absence of clear workplace policies and transparent disciplinary procedures.
What happened?
The Claimant, Mr Hewston, had been a Social Care Regulatory Inspector for OFSTED for over 12 years. During a routine school inspection, Hewston noticed a pupil who had returned indoors soaking wet from the rain. In a moment described as ‘a friendly act of sympathy and assistance’, he brushed water off the child’s head and shoulder; a gesture he believed entirely appropriate in the context.
However, the incident was reported by the school to both OFSTED and the Local Authority Designated Safeguarding Officer, asserting that the physical contact was inappropriate. Despite the absence of any safeguarding concern or student complaint, OFSTED treated the matter as a disciplinary matter. Hewston was suspended by his employer pending an investigation, during the course of which, Hewston asserted that his actions were entirely justified. By December of that year, Hewston was dismissed for gross misconduct, with OFSTED arguing that his actions showed a ‘failure to exercise appropriate professional judgment’.
Unfair Dismissal claim
Challenging the dismissal, Hewston brought a claim for both unfair dismissal and wrongful dismissal before the Employment Tribunal (ET). The ET, however, initially sided with OFSTED, asserting that the dismissal fell within the ‘band of reasonable responses’ an employer might take under the circumstances, a well-established test applied in claims for unfair dismissal. This legal test assesses whether an employer’s decision to dismiss was one which a ‘reasonable employer’ could have made in the circumstances, recognising that there may be a range of responses or actions which different employers adopt when faced with a particular turn of events. Unwilling to accept this outcome, Hewston appealed to the Employment Appeal Tribunal (EAT).
The EAT overturned the ET’s ruling. The EAT found that OFSTED had failed on two key fronts. Firstly, it had not provided clear guidance or training to its inspectors regarding physical contact with students. This lack of instruction meant that employees could not reasonably know that a gesture such as Hewston’s might result in dismissal. Secondly, and perhaps more troublingly, OFSTED had not shared crucial documents with Hewston during the disciplinary process. These included the original complaint from the school in question, as well as a statement from the student themselves. The EAT deemed this a serious breach of procedural fairness, as it denied Hewston the opportunity to respond fully to the allegations against him.
OFSTED appealed this decision to the Court of Appeal, but the court upheld the EAT’s findings. The Court of Appeal strongly emphasised that employers must make their expectations of employees unequivocal. In the absence of a clearly communicated policy indicating that any physical contact whatsoever between an inspector and student was forbidden, it was unreasonable to assume Hewston should have known his conduct constituted gross misconduct. Furthermore, the court dismissed OFSTED’s claim that reputational risk and Hewston’s perceived lack of remorse justified the dismissal, highlighting that such considerations could not outweigh the need for a fair and transparent process.
The case of Hewston v OFSTED has since become a cautionary tale for employers across both the public and private sectors. It underscores the need for clearly defined conduct policies, regular staff training, and transparent disciplinary procedures.
Employers must ensure that expectations of employee behaviour are communicated plainly, and employees are given the necessary tools and knowledge to comply. Perhaps most importantly, when disciplinary issues arise, decisions must be based on disclosed evidence and balanced judgement, as opposed to reputational concerns or assessments of remorse.
Read the Court of Appeal decision in full.
This insight is co-authored by Solicitor, Ciara Coyle. ciara.coyle@weightmans.com
