Does a lack of insight and remorse warrant dismissal? Lessons from Hewston v OFSTED [2025] EWCA Civ 250

In the recent case of Hewston v OFSTED [2025] EWCA Civ 250, the Court of Appeal looked at the question of whether an employee’s lack of “insight” and “contrition” during a disciplinary process merited a disciplinary sanction of dismissal, and found that it did not.  The Court also found that the fact that the employee had not been forewarned, and could not otherwise reasonably have been expected to know, that the employer would regard the conduct in question as sufficiently serious as to merit dismissal, meant that that dismissal was unfair.  There had also been an element of procedural unfairness during the disciplinary process, with the employer failing to provide the employee with copies of all the key documents on which the decision makers had relied when reaching their decision, consequently denying him the opportunity to comment on them and put his full case forward.   

We take a closer look at the case below, and also set out a summary of the key points for employers to bear in mind.

The Background Facts in Hewston v OFSTED

Mr Hewston was employed by OFSTED as a Social Care Regulatory Inspector, from 2007. 

In 2019, Mr Hewston and a colleague were involved in the inspection of a school, which had a “poor” working relationship with OFSTED.  During the course of that inspection, Mr Hewston and his colleague came across a group of boys (aged between 12 and 13), who had been caught in a rainstorm during a PE class and had taken shelter in the building which they were inspecting.  Mr Hewston brushed water off the head of one boy, who was particularly soaked, and touched his shoulder in what (he said) was intended as a friendly act of sympathy and assistance.  Mr Hewston also said something along the lines of “you look like a drowned rat…look at the state of you, you are soaked through” and asked if the boy was ok; the boy replied “yeah”.

The school reported the incident as a case of “inappropriate touching”, to both OFSTED and the Local Authority Designated Safeguarding Officer (“LADO”); alongside making a raft of other (unrelated) complaints to OFSTED about the inspection and ensuing report.  The student in question had also completed an incident form (with the assistance of a teacher), saying that he hadn’t felt comfortable when Mr Hewston had touched his head and shoulder.  However, there was no question that Mr Hewston’s touching of the student had been in any way sexual or sexually motivated; the suggestion was that it had been an intrusion into personal space, and inappropriate in that sense.  Nonetheless, the school’s complaint to OFSTED about the incident exaggerated the gravity of the situation; stating that “at best this was a slimey [sic] and very precarious situation”, and that the safety of the student in question had been put at risk. 

The LADO assessed the school’s complaint, and informed OFSTED that “on balance…the proportionate response is…to investigate this matter internally with [Mr Hewston] with consideration to raising awareness of professional boundaries and any training that may be required in support of this”.

OFSTED suspended Mr Hewston and began a disciplinary investigation.  During the course of that investigation, Mr Hewston stated that he had not believed that he was doing anything inappropriate.  OFSTED’s core values, professional standards / Code of Conduct and Civil Service Code (“Codes”) made no mention of the circumstances in which inspectors could or could not make physical contact with a child, nor did they contain a blanket prohibition or “no touch policy”.  Nevertheless, the investigation found that there was a disciplinary case to answer in relation to the incident, which it said was (1) inappropriate and contrary to the Codes, (2) had resulted in a breach of trust and confidence, (3) had damaged OFSTED’s reputation, and therefore constituted gross misconduct. 

During the disciplinary hearing that ensued, Mr Hewston (who had a clean disciplinary record) expressed the view that the complaint had been blown out of proportion, that the school (which was “difficult” and had made an array of complaints against various inspectors) was looking for a reason to pick on an inspector, and that his touching of the child had been a “caring gesture” that was not excessive.  He questioned how he had breached the Codes, and highlighted that OFSTED did not have a “no touch policy”.  He also flagged that the complaint from the school, the boy’s statement, and the LADO report, had not been shared with him during the disciplinary process.  Mr Hewston nonetheless acknowledged the impact that the incident had had on OFSTED, suggested in mitigation that there were other ways to address the issue (such as training), and said that he did not feel that it warranted a disciplinary procedure.  He stated “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 chid…was not a crime and [did not need] to come to this…It does not fall within the definition of gross misconduct.  Having gone through all of this and the stress I can say that I would not do it again.  That is not suggesting I’m guilty.  Does that make sense?”  Following the disciplinary hearing, Mr Hewston was summarily dismissed for gross misconduct. 

In the subsequent dismissal letter, OFSTED stated that Mr Hewston’s touching of the student in question had been “a grave error of judgment”.  His position that he had not breached professional standards, and his view that the school’s complaint was exaggerated, showed “a lack of self-awareness, failure to reflect and a lack of contrition”.  His statement that, though he would not do something like this again, he did not feel that his actions were inappropriate, meant that it had “no confidence that [he] recognise[d] [his] error, or [would be] able to maintain…professional boundaries” nor that he was willing to abide by its standards.  Though it acknowledged that he did not pose a risk to children, and that the incident neither amounted to “harm” nor constituted a safeguarding breach, it nevertheless concluded that he had brought the organisation into disrepute, and had shown no remorse or conviction that he would not repeat “this grave error of judgment”.  Lastly the letter stated that, though he had put forward various arguments in mitigation, because of his “concerning lack of contrition and reflection on [his] actions…[and in the absence of any] recognition of any wrongdoing” the relationship of trust and confidence had been “destroyed”, and it had no option but to dismiss him. 

Mr Hewston appealed but was unsuccessful. 

He subsequently brought proceedings against OFSTED in the Employment Tribunal (“ET”), for both unfair and wrongful dismissal. 

The initial ET decision

At first instance, the ET dismissed both of Mr Hewston’s claims.  It held that, though there was no “no touch policy” in place, and though no harm had been intended, Mr Hewston’s conduct had been inappropriate.  The fact that he had not viewed his conduct as such had resulted in a fundamental loss of trust and confidence.  He should have been aware of the consequences of inappropriate touching.  OFSTED had subsequently reasonably, and fairly, dismissed him, following their disciplinary process, for gross misconduct, and in particular because his actions undermined the trust and confidence that it was entitled to expect to have in his ability to perform his job as an inspector.  However, the ET also acknowledged that a sanction falling short of dismissal, such as further training, may have been appropriate in the circumstances.

Mr Hewston appealed to the Employment Appeal Tribunal (“EAT”).

The subsequent EAT decision

The EAT allowed Mr Hewston’s appeal on two grounds. 

Firstly, a key question to be determined was whether it had been reasonable for OFSTED to take the view that Mr Hewston’s conduct was of such a serious nature, that he did not need to be specifically forewarned that it would be regarded as sufficiently serious as to warrant dismissal.  It was relevant that the incident did not raise a safeguarding issue, that OFSTED did not have a “no touch policy”, and that there was no other policy or guidance or training on the subject.  Mr Hewston therefore could not reasonably have been expected to know that making physical contact with a student might result in dismissal. The fact that Mr Hewston had not viewed his conduct as inappropriate, nor (in OFSTED’s opinion) shown insight, contrition or reflection, was not sufficient justification for his dismissal; it stated that, “if it would not…be open to the employer [to reasonably] dismiss for the [conduct complained of], then the absence of [insight, contrition or reflection] cannot render that sanction fair”.  The dismissal was therefore substantively unfair.

Secondly, as OFSTED had failed to show Mr Hewston important documents (including the LADO report, the school’s complaint and the student’s written account), which had been seen by the dismissing manager, his dismissal was also procedurally unfair. 

OFSTED appealed to the Court of Appeal (“CA”).

The Court of Appeal’s decision

The CA rejected OFSTED’s appeal, and agreed with the EAT’s decision.  It concluded that Mr Hewston’s dismissal was both procedurally and substantively unfair.  It found that:

• A key question in assessing the fairness of the dismissal was whether Mr Hewston should reasonably have been aware that his conduct might result in dismissal.

The EAT held that a key issue was whether it was reasonable for the dismissing and appeal officers to take the view that Mr Hewston’s conduct was of such a serious nature, that he did not need to be specifically forewarned that it would be regarded as so serious as to warrant dismissal.

When considering this question, the EAT had given consideration to the recommendation in the ACAS Code, that employers should give examples of the kinds of conduct which will be regarded as gross misconduct, in their disciplinary policies.  It was relevant that OFSTED did not have any “no touch policy” in place, nor any guidance or training on the matter.

It was also relevant that Mr Hewston’s conduct did not amount to a safeguarding breach, and that there had been no “harm”. 

Mr Hewston had not been forewarned or “placed on express fair notice” that this particular conduct may attract the sanction of dismissal.  It was not fair, in the circumstances, to dismiss him for it.

• The lack of specificity in OFSTED’s disciplinary rules, and absence of relevant guidance, made the dismissal unfair. 

Specifically, the EAT had asked whether, in the absence of a “no touch policy”, it was reasonable for OFSTED to take the view that Mr Hewston’s conduct was of a kind which he should have realised would be regarded as warranting dismissal.  That was the right question to ask.

• Mr Hewston’s lack of contrition was not sufficient justification for dismissal.

The EAT had considered the question of Mr Hewston’s attitude towards his misconduct – i.e. whether he had shown insight or remorse, a willingness to learn, etc. – and had clearly stated that if it would not be open to the employer to reasonably dismiss for the conduct in question, then the absence of such insight, etc. cannot make that sanction fair. 

Lord Justice Underhill stated:

“I find it hard to see how in such a case it could be reasonable for the employer to bump up the seriousness of the conduct only because the employee fails during the disciplinary process to show proper contrition or insight…How employees react to an allegation of misconduct is likely to vary greatly according to individual treatment and the dynamics of the particular situation.  The stressful circumstances of a disciplinary hearing or interview are unlikely to be conducive to calm self-reflection, and it is inevitable that some employees will be overly defensive.  In some cases also, where the issue is whether what was done constituted gross misconduct, an employee who genuinely believes that it did not faces the dilemma that if they say that they would not do the same thing again they may be taken to be accepting guilt.”

He went on to acknowledge that there may be some cases where it is more difficult to draw a distinction between the seriousness of the misconduct and the employee’s subsequent attitude, or cases where there has been less serious misconduct but a persistent failure on the employee’s part to recognise any wrongdoing and therefore a real risk that the misconduct will reoccur in the future; but this was clearly not a case of that kind.

In this case, though OFSTED may have been entitled to find that it was a misjudgement for Mr Hewston to act in the way he did, it was not a misjudgement which implied a real risk of serious misconduct in the future, or which warranted dismissal.  OFSTED did not believe that Mr Hewston was a risk to children; the incident raised no safeguarding issues; Mr Hewston had been clear that he would not do anything of the kind again.

• Failure to provide key documents to Mr Hewston during the disciplinary process made his dismissal procedurally unfair.

During the course of the disciplinary investigation, Mr Hewston was not given copies of the LADO report, the school’s complaint or the pupil’s statement.  He was therefore not given the opportunity to comment on them, or put forward his case in relation to them.  However, OFSTED had relied on all three documents when reaching its decision to dismiss.  In particular, it relied on the LADO report to make the assertion that Mr Hewston’s conduct had been reputationally damaging.  It also took the school’s complaint at face value, and criticised Mr Hewston for showing a “lack of self-awareness, failure to reflect and a lack of contrition” when he suggested that the school may have exaggerated the complaint (despite the fact that the school’s complaint did clearly exaggerate the gravity of the situation, glossed over the pupil’s description of events, and was overtly and unnecessarily hostile). 

Lord Justice Underhill commented that “the starting point is that in any case where an employee is accused of misconduct against another person it is obvious good practice to show him any contemporary record of that person’s complaint unless there is some good reason not to…[in this case] the Claimant…should have been given the chance to make [representations on inconsistencies in the evidence] to [the dismissing manager] in support of [his] case…fairness required that [he] should have had the opportunity to deploy evidence in support of [his] case…the unfairness is compounded by the fact that [the dismissing manager] criticised the Claimant for questioning the school’s bona fides and treated it as evidence of his lack of contrition, at a time when he had seen neither document”.

These omissions rendered the dismissal procedurally unfair.

Key considerations for employers

We have set out below some key take-away points from the Hewston case, that employers should bear in mind when conducting disciplinary processes:

• Having a clear Code of Conduct and/or Disciplinary Policy in place, which clearly sets out examples of behaviour which are likely to be viewed as gross misconduct, is essential; though that list can be illustrative rather than comprehensive.  Where specific prohibited behaviour is not listed, it will be crucial to the fairness of any subsequent dismissal that the employer can show that the employee could reasonably have been expected to have known that it would view such behaviour as sufficiently serious to likely merit dismissal; for example through other guidance or training. 

• The fact that an individual does not show “insight” or “contrition” or accept that their behaviour constitutes misconduct will not be sufficient to merit dismissal, if the conduct in respect of which they are being disciplined does not merit dismissal in and of itself.  As Lord Justice Underhill commented in both Hewston and Higgs v Farmor’s School [2025] EWCA Civ 109, it will not be reasonable for the employer to “bump up” the seriousness of the conduct (and therefore the disciplinary sanction) just because the employee fails to show proper insight or contrition.

• Procedural fairness requires that key evidence, and in particular the specific evidence that the decision maker relies on when dismissing, must be put to the individual, who must be given a chance to comment and put forward their version of events before a decision is made.  Confidential information can be redacted where necessary and appropriate.  But the principles of natural justice require that the individual is aware of the allegations against them, the key supporting evidence, and are given the opportunity to respond to it, before a final decision is made. 

• Be wary of citing a breakdown in trust and confidence as a reason for dismissal, when the real reason is misconduct.  As the Court of Appeal said in Hewston: “an employer’s loss of trust and confidence in an employee cannot justify dismissal for misconduct, unless the employee has been guilty of conduct [which is] sufficiently serious to have justifiably had that effect.  It should not be treated as a proxy for the test required by statute [in cases of misconduct]”.

If your organisation needs further advice on any of the issues outlined in this article, please get in touch and our team of experienced employment lawyers would be happy to help.

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The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.