When does a genuine mistake cross the line into gross misconduct?

Figuring out when an employee’s actions amount to gross misconduct isn’t always black and white. Some things – like theft or violence – are obvious, but others can fall into a grey area. The case of Hewston v Ofsted is a good example of how things can get complicated, and why a fair, balanced approach is so important.

What happened?

Mr Hewston, an Ofsted inspector with 12 years of spotless service, was sacked after brushing rainwater off a child’s forehead and shoulder during a school inspection. The school complained that the child felt uncomfortable, and although there were no safeguarding concerns or policies explicitly banning such actions, Ofsted decided his behaviour was serious enough to justify dismissal.

Part of the decision also hinged on Mr Hewston’s lack of remorse. He stood by his actions, saying they were innocent and suggesting the school’s complaint was influenced by tensions with Ofsted.

What did the court say?

Both the Employment Appeal Tribunal (EAT) and the Court of Appeal found the dismissal to be unfair. It made the following comments:

• The absence of the explicit misdemeanour from the list of gross misconduct offences does not prevent an employer from identifying the particular act as gross misconduct.
• However, if the particular act is not listed in the disciplinary policy, it will be vitally important for the employer to consider during the disciplinary process whether the employee could reasonably have known the act may be categorised as gross misconduct. A failure to address this could render the decision unfair.
• An employer is not entitled to increase the seriousness of the conduct simply because the employee fails to show any contrition.
• However, an employer can take into account the risk of reputational harm and the loss of trust and confidence as a factor when making a decision, but this should not be decisive – there should be some actual misconduct.
• An employee must always be provided with all copy documents that are to be relied upon during the disciplinary process.

The Court of Appeal concluded that the inspector could not have known that brushing rainwater from a child would constitute gross misconduct, and his lack of remorse over the incident did not permit the employer to promote the seriousness of the incident to an act of gross misconduct capable of dismissal.

What can employers learn?
This case highlights how important it is for employers to take a fair and measured approach when dealing with potential gross misconduct.

Final thoughts
Hewston v Ofsted shows how quickly disciplinary issues can become complex – and why it’s vital to handle them with care. Remaining impartial throughout the investigation and disciplinary process can help prevent costly tribunal claims.

*This article is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.