Gross Misconduct?

In this case, the Court of Appeal ("CA") upheld an Employment Appeal Tribunal (“EAT”) finding that the dismissal of an Ofsted school inspector for gross misconduct after he brushed rainwater off a child's head was substantively and procedurally unfair. 

The Claimant had over 12 years’ service with the Respondent and a clean disciplinary record. During a school inspection visit, pupils came inside following a PE lesson in the rain and the Claimant brushed rainwater off a pupil’s forehead and placed his hand on the pupil’s shoulder in a gesture of sympathy and assistance. 

Following a complaint letter from the school alleging that the Claimant’s conduct was inappropriate, the Respondent conducted an investigation and a disciplinary hearing before dismissing the Claimant for gross misconduct. During the disciplinary process, the Claimant stated that although he did not consider the incident to be gross misconduct, he would not do it again and was willing to undergo training. The Claimant also highlighted the school’s animosity towards the Respondent, and believed that the school was looking for a reason to pick on an inspector. The dismissal letter stressed that the Respondent did not believe the Claimant was a risk to children or that the act amounted to harm or constituted a safeguarding breach, but that the Claimant’s actions were a grave error of judgment that had brought the Respondent into dispute.

The Employment Tribunal (“ET”) dismissed the Claimant’s unfair dismissal claim, concluding that the dismissal had been fair. The Claimant’s position that he was merely showing ‘care’ should have been demonstrated by a limited non-physical engagement. The ET also found the Respondent had carried out a fair and reasonable investigation.

The EAT allowed the Claimant’s appeal, concluding that the dismissal was substantively unfair as the Respondent had not forewarned the Claimant that his actions were conduct for which he could expect to be dismissed, the incident did not raise a safeguarding issue, and the Respondent did not have a “no-touch policy” nor did it give any guidance in training on the subject of touching students. Dismissal was therefore unreasonable in the circumstances. 

The CA agreed with the EAT that the dismissal was both substantively and procedurally unfair. It emphasised that: 

• Although the Claimant made a misjudgement in acting in such a way, the act did not imply a real risk of serious misconduct in the future.
• In the absence of a “no-touch” rule or other explicit guidance covering such a situation, the Claimant had no reason to believe that he was doing anything so seriously wrong as to warrant dismissal.
• In considering the Respondent’s argument that the dismissal was related not only to the touching incident but also to the Claimant’s attitude and subsequent lack of remorse, the CA held that the EAT was right that the Claimant’s subsequent attitude should not have made any difference. The CA stated it was hard to see how it could be reasonable for the employer to treat the conduct as more seriousness because of the employee’s lack of contrition or insight. 
• The dismissal was procedurally unfair because the Claimant had not been shown the pupil’s statement, the school’s complaint or the local authority response during his disciplinary proceedings. 

This case highlights the need for clear policies and guidance relating to acceptable boundaries and physical contact for employees that work with children, as well as the importance of ensuring employees are presented with the specific complaints against them in a disciplinary process, and any relevant contemporaneous evidence.