The case of Hewston v Ofsted serves as a pivotal reminder of the importance of well-defined policies and procedures within independent schools. This case highlights how the absence of clear guidelines can lead to significant legal challenges.
Facts of the Hewston v Ofsted case
Andrew Hewston was employed as an Ofsted inspector for over 12 years and had an exemplary record. In October 2019 he was involved in an incident during a school inspection. As a group of students entered the school building soaked from the rain, Mr Hewston noticed one student with water dripping down his face. Mr Hewston brushed the water off the student’s head and lightly touched his shoulder, inquiring if he was okay. This gesture was intended as a caring act, and it was accepted that there was no intent to harm the student, nor did the incident raise any safeguarding concerns.
The claim brought by Mr Hewston
Following the incident, the school lodged a complaint, stating that the physical contact was inappropriate and made the student uncomfortable. Ofsted undertook a disciplinary process, resulting in Mr Hewston’s dismissal for gross misconduct in December 2019. The primary reason for his dismissal was a failure to exercise “good inspection judgment” by initiating unsolicited physical contact with a student, which allegedly breached professional standards and trust in his professional judgment. Ofsted had not provided any training or established policies regarding physical contact during inspections, and there were no disciplinary rules defining such conduct as misconduct or gross misconduct.
Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) findings
Initially, an ET dismissed Mr Hewston’s claim for unfair dismissal, siding with Ofsted’s decision. However, upon appeal, the EAT overturned this decision in August 2023. The EAT identified several critical issues:
- Lack of Clear Policies and Training: Ofsted had not provided inspectors with guidance or training on appropriate physical contact with students. The absence of such policies meant that employees were not aware that a single incident of this nature could result in dismissal for gross misconduct. The EAT emphasised that while not every conceivable behaviour needs to be outlined in a disciplinary policy, employees should be reasonably aware of what constitutes gross misconduct.
- Procedural Fairness: The EAT found that key documents, including the school’s complaint, the student’s statement, and the Local Authority Designated Officer’s (LADO) report, were not disclosed to Mr Hewston throughout the disciplinary process. This lack of transparency compromised the fairness of the procedure, as Mr Hewston was denied the opportunity to fully understand and respond to the allegations against him.
Consequently, the EAT ruled the dismissal both substantively and procedurally unfair.
Learnings for independent schools
The Hewston v Ofsted case offers several important lessons for independent schools regarding their policies and procedures:
- Establishment of Clear Policies: Schools must develop explicit policies outlining acceptable and unacceptable behaviours. These policies should provide clear guidance on what constitutes misconduct or gross misconduct.
- Training: Implementing regular training sessions ensures that all staff members understand the established policies and the boundaries of appropriate conduct. This proactive approach can help prevent misunderstandings.
- Fair and Transparent Disciplinary Procedures: In the event of alleged misconduct, schools must adhere to fair procedures, including full disclosure of all relevant evidence. This is vital in maintaining procedural fairness and upholding the integrity of any disciplinary processes.
- Regular Policy Reviews: Continuous evaluation and updating of policies ensure they remain relevant and effective.
How can Moore Barlow help
Hewston v Ofsted highlights the need for independent schools to maintain clear, well-communicated policies and procedures. Such measures not only protect the rights of staff and students but also safeguard the institution against legal disputes and enhance the overall educational environment. We provide bespoke advice to schools on issues comprehensive training, policies and procedures and disciplinary processes. Do get in touch with a member of our team should you need any assistance.
