What happens when an employee says no under TUPE

The Court of Appeal’s decision in Hewston v Ofsted offers valuable guidance for employers handling conduct-related dismissals.

What might appear to many as a relatively minor brushing of rainwater off a pupil’s head, escalated into something much more serious. Partly because of a breakdown in trust between a school and the Ofsted inspectorate, partly because Ofsted itself was judged to have overreacted.

The case involved an Ofsted inspector who was summarily dismissed after touching a pupil’s forehead and shoulder to remove rainwater. Despite having a clean disciplinary record, the Claimant was dismissed on the grounds of gross misconduct. The Employment Appeal Tribunal agreed with the Claimant that the dismissal was unfair. But the employer continued to challenge this, so it went to the higher Court of Appeal.

The Court ultimately found the dismissal unfair, reaffirming critical principles surrounding fair disciplinary procedures.

Key Principles from the Case

1.    Gross Misconduct Must Be Clearly Justified 

While disciplinary policies often list examples of gross misconduct, the absence of a specific offence does not automatically prevent summary dismissal. However, if the act is not listed, an employer must consider whether the employee could reasonably have expected that it could be regarded as gross misconduct.

2.    Context Matters in Determining Serious Misconduct

Employers must assess the nature of the act and surrounding circumstances. In this case, the Court found that the inspector’s actions - removing rainwater from a pupil - were not something he could reasonably have anticipated being treated as gross misconduct. 

3.    Lack of Contrition cannot Inflate the Seriousness of Misconduct 

If an employee’s conduct does not, on its own, justify dismissal, an employer cannot rely on a lack of remorse to justify a harsher sanction. This prevents subjective factors from disproportionately influencing disciplinary outcomes.

4.    Trust and Reputation Concerns must be Grounded in Actual Misconduct

While loss of trust and confidence, or reputational risks can influence disciplinary decisions, they must be based on some level of misconduct. An employer cannot use these concerns in isolation as justification for dismissal.     

5.    Transparency and Procedural Fairness are Essential

Employees must be provided with all relevant documentation before a disciplinary decision is made. A failure to do so undermines procedural fairness, and can contribute to a finding of unfair dismissal.

Action Points for Employers

• Review and update disciplinary policies to ensure that all potential examples of gross misconduct are clearly outlined.

• Consider whether an employee could reasonably expect their actions to be treated as serious misconduct before taking disciplinary action.

• Do not escalate disciplinary consequences based solely on an employee’s perceived lack of remorse.

• Ensure that loss of trust and reputational harm are linked to actual misconduct before using them as a justification for dismissal.

• Provide full disclosure of all relevant documents to employees facing disciplinary action to maintain procedural fairness.

By following these principles, employers can ensure that disciplinary decisions are fair, transparent, and legally robust.

The guidance provided in this article is just that - guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice