It is obviously impractical for employers to have in place disciplinary policies that set out each and every form of frowned-upon conduct. However, as an Employment Appeal Tribunal (EAT) ruling showed, employees are generally entitled to some forewarning of the types of behaviour that may result in immediate dismissal (Hewston v Ofsted).
The case involved a school inspector who, during an inspection visit, encountered a group of pupils who had come in soaking from the rain. He brushed water from the hair or forehead of one boy and put his hand on the child's shoulder. After the school complained, he expressed the view that the incident did no more than exhibit his caring attitude and had been blown out of all proportion.
Following an investigation and disciplinary process, however, he was dismissed for gross misconduct. His employer, Ofsted, took the view that his uninvited touching of the boy was inappropriate and contrary to its core values. His unfair dismissal complaint was subsequently rejected by an Employment Tribunal (ET).
Ruling on his challenge to that outcome, the EAT noted that Ofsted had no written policy which forbade touching of pupils. It acknowledged, however, that it was not incumbent on Ofsted to identify every type of misconduct which would be viewed as gross, thereby justifying dismissal for a single instance. However long such a list might be, it could never cover every circumstance that might arise.
The conduct in question was not regarded as giving rise to a safeguarding issue. It was not so serious as to render it inherently obvious that it could result in summary dismissal. The EAT observed that it was not fair to dismiss an employee for conduct which he does not appreciate, and could not reasonably be expected to appreciate, might attract dismissal for a single occurrence.
Whilst recognising that certain kinds of physical touching will obviously be regarded as gross misconduct, the EAT found that the incident did not fall into that category. The inspector had received no fair notice or forewarning that the particular conduct in which he engaged would attract the sanction of summary dismissal.
In substituting a conclusion that his dismissal was unfair, the EAT also noted that he had not been afforded access to certain documents prior to the disciplinary hearing, including the pupil's statement and the text of the school's complaint. If not agreed, the amount of his compensation would be assessed at a further hearing before a freshly constituted ET. His additional complaint of wrongful dismissal, previously rejected, was also remitted for redetermination.