UK: Court of Appeal rules that employee's lack of contrition for minor misconduct did not justify dismissal

Employers cannot rely on an employee's failure to admit wrongdoing or show contrition for misconduct that falls short of gross misconduct to 'bump up' the seriousness of the conduct and render dismissal fair, unless this indicates that there is a real risk that the employee will commit more serious misconduct in the future. 

The Court of Appeal held in Hewston v Ofsted that a tribunal was wrong to hold that it was fair to dismiss a school inspector for brushing rainwater off a student's head and lightly touching his shoulder during an inspection (where there was no suggestion of improper motive or safeguarding concerns). Ofsted did not have a 'no-touch' policy expressly identifying all types of touching as gross misconduct and, in the absence of such a policy, it was unreasonable for Ofsted to take the view that the inspector should have realised this conduct would be regarded as gross misconduct. 

Even if dismissal was for the composite reason of the misconduct plus the fact that the employee insisted he had done nothing wrong, dismissal was not within the range of reasonable responses, given this did not imply any real risk he would commit more serious misconduct in the future. He had stated that he would not repeat his actions and was willing to undergo training; Ofsted was wrong to discount this reassurance on the basis that he was motivated by the trouble his actions had got him into rather than because he thought he had done anything wrong - what mattered was the result, not his motivation. 

The Court stated that an employee's lack of proper contrition or insight will not normally make it reasonable to increase a disciplinary sanction, not least because disciplinary hearings are not conducive to calm self-reflection and an employee who does not believe that he has done wrong will be reluctant to agree not to repeat the conduct in case that implies guilt. While there may be cases where a lack of insight implies a real risk of serious misconduct in the future (for example, where there is a persistent failure to recognise they have done anything wrong), that was not the case here.