Lack of contrition did not bump up seriousness of misconduct

In a recent appeal decision, the Court of Appeal has emphasised that lack of insight or contrition will not normally “bump up” the seriousness of any misconduct, making it reasonable to dismiss, where it would otherwise have been unreasonable.

In course of a school inspection, Andrew Hewston had brushed water off the head of a pupil who had been caught in a rainstorm and also touched his shoulder. The incident was reported to OFSTED as a case of inappropriate touching. Following disciplinary proceedings, he was summarily dismissed for gross misconduct. All parties accepted that no child protection issues arose.

The employment tribunal dismissed Mr Hewston’s unfair dismissal claim, but this decision was reversed by the Employment Appeal Tribunal. The key reason was that Mr Hewston had not been told, and should not otherwise reasonably have understood, that any touching of a pupil without consent might attract the sanction of dismissal. It was therefore unreasonable to dismiss him for that reason, and the employment tribunal should have upheld his complaint of unfair dismissal.

The Court of Appeal has now dismissed OFTED’s appeal against the EAT’s ruling. The most interesting feature of this decision is what it says about the relevance of contrition or insight. 

The basic rule in misconduct cases is that will not normally be fair to dismiss an employee for something they could not reasonably expect the employer to regard as serious misconduct. Where – as in this case – the alleged misconduct is not explicitly mentioned in the disciplinary procedure, the issue of whether the employee should have appreciated that the employer would regard what they were doing as serious misconduct will need to be assessed by looking at the nature of the act and the surrounding circumstances.

The Court of Appeal’s decision makes it clear that the employee’s degree of contrition or insight will not normally be relevant at this stage. As the leading judgment explains:

“As a general proposition, 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 temperament 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 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.”

The lesson for employers is that the assessment of whether misconduct is serious enough to justify summary dismissal is an objective one. Issues of insight and contrition – ie the employee’s subjective response to being accused of misconduct – are not normally relevant when making this assessment. However, they are likely to return when assessing the sanction to imposed, assuming always that the misconduct is serious enough to warrant dismissal.

Subject to any further appeal, the case will now return to the employment tribunal to assess compensation.

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