An Employer Failing to “Forewarn” Leads to Unfair Dismissal

When it comes to handling gross misconduct cases in the workplace, employers must tread carefully to ensure fairness and compliance with employment law. A recent case provides valuable insights into the importance of clear policies, communication, and robust procedures when dealing with such situations.

Case Summary: Hewston v Ofsted

In this case, an employee who worked as a Social Care Regulatory Inspector was dismissed for gross misconduct. The incident that led to the dismissal occurred during an inspection of a school when the employee wiped water from a child’s head and back. This seemingly innocent act resulted in a complaint from the school, leading to suspension and a disciplinary process.

In this case, the Employment Appeal Tribunal (EAT) ultimately ruled in favour of the employee, declaring the dismissal unfair. The EAT highlighted two key issues: the employer’s failure to forewarn the employee about the potential consequences of their actions and the denial of access to critical documents during the disciplinary process.

These shortcomings led to a breach of natural justice and undermined the fairness of the dismissal. As a result, the EAT overturned the previous decision which agreed the dismissal was fair, emphasising the importance of adhering to clear procedures, maintaining consistency, and affording employees their right to a fair hearing in disciplinary matters.

6 Key Takeaways for Employers

1. Clear Communication and Policies Are Crucial

Employers should ensure that employees are aware of what constitutes “misconduct” and the potential consequences. This case highlights the importance of having written policies that clearly outline acceptable and unacceptable behaviour. Forewarning employees about the consequences of their actions, either through policies, training, or other means, is vital.

2. Follow a Fair and Reasonable Process

The law requires employers to follow a fair and reasonable process when considering dismissal. This includes conducting a reasonable investigation, providing the employee with relevant information, and affording them an opportunity to defend themselves. The failure to follow such a process can render a dismissal unfair.

3. Consider the “Band of Reasonable Responses”

When assessing the fairness of a dismissal, tribunals use the “band of reasonable responses approach.” This means that they consider whether the employer’s decision falls within a range of responses that a reasonable employer might take. Employers should be able to demonstrate that their decision falls within this band.

4. Document Everything

It’s crucial to document all stages of a disciplinary process, from the initial investigation to the final decision. This not only ensures transparency but also helps in defending the fairness of the dismissal.

5. Consistency Matters

Employers should apply consistent standards across the organisation. In this case, the employer was criticised for lacking a consistent approach regarding physical touch. Clarity and consistency in workplace expectations are essential to avoid misunderstandings.

6. Natural Justice and Access to Information

Denying an employee access to documents that are relied upon in a disciplinary process can be considered a breach of natural justice. Employees have the right to see the evidence against them to mount a proper defence.

Final Comments

This case serves as a valuable reminder for employers to approach gross misconduct cases with diligence and fairness. Clear communication of expectations, adherence to fair procedures, and consistent application of policies are essential.

Employers should also recognise the significance of providing employees with access to relevant information during a disciplinary process. By following these principles, employers can mitigate the risk of unfair dismissal claims and maintain a positive workplace culture built on trust and fairness.

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