An Ofsted inspector who was sacked after brushing water off a child’s head was unfairly dismissed, according to the Court of Appeal.
Andrew Hewston had worked for the schools inspectorate for 12 years when he was summarily dismissed for touching a pupil’s forehead and shoulder to remove rainwater during an inspection in 2019.
He brought Ofsted to an employment tribunal in 2021 for both unfair and wrong dismissal, but both claims were dismissed.
Hewston appealed and this was heard at the Employment Appeal Tribunal in June 2023, where his claim for unfair dismissal was upheld. Ofsted appealed, and the Court of Appeal has now upheld the EAT’s decision.
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The court noted that there was a pre-existing poor relationship between the school Hewston had visited and Ofsted, which led to a letter of complaint being “redolent with hostility”.
The school had complained that the pupil’s personal space had been invaded and that the situation with Hewston had been “slimy and very precarious”.
In his judgment, Lord Justice Warby said that the child’s account of the incident had been “a good deal less dramatic than the headteacher’s version”.
He added that “there has never been any suggestion of any improper motivation on the part of the claimant: what he did was intended as a friendly act of sympathy and assistance”.
The court heard that during Hewston’s disciplinary investigation, he had pointed out that he did not feel his actions had fallen within the realm of disciplinary procedures.
Hewston told the court: “To say I would not do it again would suggest I’m guilty of acting inappropriately. I feel that the gesture of care for a child and engagement, I still feel that it was not a crime and needed to come to this point. It does not fall within the definition of gross misconduct.”
The Court also pointed out that touching a pupil was not listed as an example of gross misconduct, despite Ofsted informing Hewston that his dismissal without notice was “in line with Ofsted’s disciplinary policy and procedure”.
In a statement after the judgment, Hewston said: “I’ve spent the past five and a half years dealing with the fallout of Ofsted’s decision.
“It has been a very difficult time but I am glad my name has been cleared and my exemplary record remains intact.”
He was supported by Unison throughout. General secretary Christina McAnea said: “He never should have been sacked and Ofsted shouldn’t have wasted public money pursuing him needlessly through the courts.”
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