School inspector Andy Hewston. Credit: Marcus Rose
The second part of this test is frequently misunderstood in practice. Over the last 50 years, case law has interpreted the statutory test to mean that a tribunal must assess objectively whether dismissal fell within the ‘range of reasonable responses’ available to the employer in the circumstances.
Whether or not the employee was ‘guilty’ of what has been alleged, or whether the tribunal would have dismissed the employee if it had been in the employer’s shoes is not the point. The point is that the tribunal must never substitute its own view for that of the employer. In practice, the statutory test examines what the employer reasonably believes, based on what it reasonably knows, about the relevant matters.
Andy Hewston: an example of unfair dismissal
Andy (pictured above) was employed by Ofsted as a school inspector since 2007 and had an exemplary record at work prior to his dismissal. In 2019, during an inspection, a group of pupils came in from a rainstorm and were soaking wet. While standing with another inspector, Andy brushed water from the head of one student, a 12-year-old boy, and commented that he was soaked through.
The school reported the incident to Ofsted and to the local authority designated officer (LADO) for safeguarding, and provided a statement made on behalf of the student. The LADO wrote to Ofsted advising it to investigate the matter internally, potentially with a view to offering further training to Andy. The school then sent a lengthy complaint letter to Ofsted about the inspection that included an inflammatory description of the incident, alleging that Andy and the other inspector had “put the safety of a student at risk.”
During his disciplinary hearing, Andy stated that, although he did not consider the incident fell within the definition of gross misconduct, he would not do it again because of the stress it had caused. He also said he would be happy to undergo training.
Andy was dismissed for gross misconduct. The dismissal letter stressed that he was not considered a risk to children and had not done anything amounting to “harm” or a “safeguarding breach”. However, it stated that he had “brought Ofsted into disrepute through this grave error of judgement” and that, having shown no remorse, Andy had not satisfied them that he would not do something similar again.
The employment tribunal dismissed his claim for unfair dismissal, holding that Ofsted had conducted a fair and reasonable investigation, and had formed a reasonable belief that his actions undermined Ofsted’s trust and confidence in his abilities and amounted to gross misconduct.
Even if the tribunal (and the LADO) might have considered that a sanction falling short of dismissal might be appropriate, it was not for the tribunal to substitute its own views for those of a reasonable employer.
UNISON supported Andy with an appeal to the Employment Appeal Tribunal (EAT). The EAT allowed Andy’s appeal and substituted a finding of unfair dismissal. The dismissal had been substantively unfair as it would not have been obvious to Andy that he could expect to be dismissed for touching a student in this manner. The incident raised no safeguarding issues, the employer did not have a “no touch” policy, and there had been no relevant training.
The EAT also found that the dismissal was procedurally unfair as Andy had not been shown the LADO response, the school’s complaint letter, or the pupil’s statement during the disciplinary proceedings.
Ofsted appealed to the Court of Appeal, arguing, among other things, that the EAT had not properly taken into account that the reason for dismissal was not just the touching, but Andy’s alleged lack of contrition or insight during the disciplinary process.
UNISON represented Andy at the Court of Appeal hearing that took place in October 2024. The court unanimously dismissed the appeal by Ofsted and agreed with the EAT that Andy had been unfairly dismissed. The judgment with the reasons was eventually provided by the court in March 2025.
The judgment is noteworthy for two important reasons
First and foremost, the case is a classic example of how the infamous ‘range of reasonable responses’ test for dismissals involving alleged gross misconduct can be misunderstood by tribunals. While the Court of Appeal declined to address the inherent unfairness for workers in this test (deciding “the phrase has become too embedded in the jurisprudence to try to reformulate it”), it set out some important factors that must be taken into account. The EAT had been correct to find that the decision to dismiss was not reasonable because the incident did not raise any safeguarding issue and there had not been any training about touching students.
Second, the facts in this case addressed some common employer tactics – namely to assert that there had been inadequate remorse shown about the seriousness of the incident and that the alleged gross misconduct had damaged the employer’s reputation – where the Court of Appeal saw right through the arguments made by Ofsted.
As a matter of principle, the court held that a reasonable employer should not attempt to “bump up” the seriousness of the conduct because of a lack of contrition or insight. Andy had understood how his conduct could be viewed as a misjudgement and had not implied any real risk of serious misconduct in the future. His behaviour in responding to the allegations did not justify the dismissal.
Ofsted has recently confirmed it will not seek permission to appeal to the Supreme Court. This means that the case returns to the employment tribunal for a remedies hearing in late 2025, nearly six years after Andy’s unfair dismissal. UNISON has represented Andy throughout and will continue to do so until we obtain a successful outcome.
