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  Today in the Lefevre HR and Employment Law podcast, we're discussing the Court of Appeal judgment in the case of Hewston and Ofsted, in which the court was asked to consider whether a dismissal had been fair, particularly in relation to the application of the ACAS Code on Discipline and Grievance, hereafter referred to as the DG Code. Employers should follow the DG Code when dismissing for misconduct. Among other things, the DG Code requires that examples of gross misconduct are set out. clearly in a written code of conduct or explained to staff in training and that during the disciplinary process the employee is given copies of any evidence being considered. This case concerned an Ofsted inspector whose role involved visiting schools to perform inspections. A school complained following an inspection that the inspector had brushed rainwater off the hair or forehead of a pupil. A disciplinary investigation was triggered on the basis that the inspector had, without consent or invitation, touched a child on the head and shoulder. As a matter of routine, the local authority designated officer was notified, but they concluded there were no safeguarding concerns and suggested the matter be dealt with via retraining. During the disciplinary process, the inspector argued that the employer seemed to be advocating it had a no-touch policy, which went against training he had received, and the employer denied that it had any such policy. The inspector was summarily dismissed for gross misconduct. primarily for a failure to exercise good inspection judgment by initiating uninvited or unexpected physical contact with a pupil, although the disciplinary decision also referred to possible reputational damage and expressed concern about the inspector's lack of understanding and contrition. The Employment Appeal Tribunal held that the inspector's dismissal was unfair, as it had not been made clear to him via a policy or training that a single incident of touching a pupil. innocently and without leading to safeguarding concerns, could lead to dismissal and due to the employer's failure to give him copies of three documents seen and relied on by the dismissing officer in advance of the disciplinary hearing. Those documents being the text of the school's complaint, the text of the child's statement and an email from the local authority designated officer confirming that no safeguarding concerns arose from the incident. The employer appealed to the Court of Appeal. primarily on the basis that the Employment Appeal Tribunal had failed to properly consider that the inspector had been dismissed not just for the physical touch of a pupil, but also for his lack of contrition or insight during the disciplinary process. The Court of Appeal unanimously dismissed the employer's appeal and upheld the Employment Appeal Tribunal's decision that the inspector's dismissal was unfair. The Court began by noting that there had never been any suggestion of any improper motivation on the inspector's part. and the touch was intended as a friendly act of sympathy and assistance. The court held that the Employment Appeal Tribunal had been plainly right to conclude that the tribunal had erred when it failed to adequately consider the fact that the inspector had not been forewarned by the employer via a written policy, training, or in another way, that a single incident of innocently motivated physical contact with a pupil could result in his dismissal. In the absence of a no-touch policy or training on this issue, It was unreasonable for the employer to take the view that it was obvious from the nature of the conduct that it could lead to dismissal. It also held that as a general proposition, it was hard to see how it could be reasonable for an employer to increase the seriousness of the conduct, only because the employee has failed during the disciplinary process to show proper contrition or insight. Employees will react to allegations of misconduct in varying ways, and disciplinary processes are stressful and not conducive to calm self-reflection. which can lead to employees becoming overly defensive. Where it is questionable whether the employee's behaviour amounts to misconduct at all, saying they would not repeat the behaviour causes a dilemma because this may be taken to be an acceptance of guilt. There may be cases where this general proposition should not apply, for example where it is difficult to distinguish between the substantive conduct and the employee's subsequent attitude, or where there is a real risk of more serious misconduct because an employee persistently fails to recognise that they have done anything wrong. Further, it found that the Employment Appeal Tribunal had correctly held that the disciplinary procedure had been unfair because the inspector had not been shown relevant evidence which the dismissing manager had taken into consideration. The court said that, where an employee is accused of misconduct against another person, it is obvious good practice to show them any contemporary record of that person's complaint, unless there is some good reason not to. In a supporting judgment, expressly agreed by the other justices, The relevance of possible reputational harm to the employer was considered, and it was said that, while this may be a relevant factor, this cannot be a standalone basis to discipline or dismiss without some underlying misconduct. The mere fact of an adverse impact on reputation will not be enough because some damage to reputation is a natural and foreseeable consequence of misconduct. It may also be unfair to hold third-party reactions against an employee if these are based on a misrepresentation or misunderstanding of what they have done, or involve an unjustifiable view about the gravity of their conduct. In this case, the employer's allegation of reputational harm did not add clarity or significance to the disciplinary charges the inspector faced. Look out for further episodes in this series to stay up to date on all things HR and employment law related.