Recent Court of Appeal Judgment: A single instance of physical contact with a child did not warrant dismissal

The act, which Ofsted deemed to constitute gross misconduct, and which they allege caused a ‘resultant loss of trust and confidence’, occurred in October 2019, with his dismissal coming in November of the same year. There had never been any suggestion of any improper motivation on the part of the inspector, and it was maintained that it was simply a temporary lapse in judgment brought on by sympathy.

At the time of the incident, Ofsted did not have a ‘no-touch’ policy, and the inspector had not been trained nor forewarned, that this act could amount to gross misconduct. Furthermore, the Employment Appeal Tribunal (EAT) noted that there was no guidance in regard to circumstances in which physical contact would or would not be regarded as permissible.

The Employment Appeal Tribunal held that the lack of clear policy and training by Ofsted on the matter had not been fully considered, and in light of this, determined that the dismissal of the inspector was unfair. This decision was then upheld by the Court of Appeal, due to the innocent nature of the incident.

This ruling highlights the importance of establishing clear and comprehensive policies, particularly in regard to safeguarding in schools, both in relation to staff and visitors, and ensuring that any individuals whom are working with children are fully trained on potential grounds for gross misconduct.