Frontline UK Employment Law Update Edition 35 2025 - Case Updates

Hewston v OFSTED [2025] EWCA Civ 250 (LINK)

In this case, the Court of Appeal ("CA") upheld an Employment Appeal Tribunal (“EAT”) finding that the dismissal of an Ofsted school inspector for gross misconduct after he brushed rainwater off a child's head was substantively and procedurally unfair. 

The Claimant had over 12 years’ service with the Respondent and a clean disciplinary record. During a school inspection visit, pupils came inside following a PE lesson in the rain and the Claimant brushed rainwater off a pupil’s forehead and placed his hand on the pupil’s shoulder in a gesture of sympathy and assistance. 

Following a complaint letter from the school alleging that the Claimant’s conduct was inappropriate, the Respondent conducted an investigation and a disciplinary hearing before dismissing the Claimant for gross misconduct. During the disciplinary process, the Claimant stated that although he did not consider the incident to be gross misconduct, he would not do it again and was willing to undergo training. The Claimant also highlighted the school’s animosity towards the Respondent, and believed that the school was looking for a reason to pick on an inspector. The dismissal letter stressed that the Respondent did not believe the Claimant was a risk to children or that the act amounted to harm or constituted a safeguarding breach, but that the Claimant’s actions were a grave error of judgment that had brought the Respondent into dispute.

The Employment Tribunal (“ET”) dismissed the Claimant’s unfair dismissal claim, concluding that the dismissal had been fair. The Claimant’s position that he was merely showing ‘care’ should have been demonstrated by a limited non-physical engagement. The ET also found the Respondent had carried out a fair and reasonable investigation.

The EAT allowed the Claimant’s appeal, concluding that the dismissal was substantively unfair as the Respondent had not forewarned the Claimant that his actions were conduct for which he could expect to be dismissed, the incident did not raise a safeguarding issue, and the Respondent did not have a “no-touch policy” nor did it give any guidance in training on the subject of touching students. Dismissal was therefore unreasonable in the circumstances. 

The CA agreed with the EAT that the dismissal was both substantively and procedurally unfair. It emphasised that: 

• Although the Claimant made a misjudgement in acting in such a way, the act did not imply a real risk of serious misconduct in the future.
• In the absence of a “no-touch” rule or other explicit guidance covering such a situation, the Claimant had no reason to believe that he was doing anything so seriously wrong as to warrant dismissal.
• In considering the Respondent’s argument that the dismissal was related not only to the touching incident but also to the Claimant’s attitude and subsequent lack of remorse, the CA held that the EAT was right that the Claimant’s subsequent attitude should not have made any difference. The CA stated it was hard to see how it could be reasonable for the employer to treat the conduct as more seriousness because of the employee’s lack of contrition or insight. 
• The dismissal was procedurally unfair because the Claimant had not been shown the pupil’s statement, the school’s complaint or the local authority response during his disciplinary proceedings. 

This case highlights the need for clear policies and guidance relating to acceptable boundaries and physical contact for employees that work with children, as well as the importance of ensuring employees are presented with the specific complaints against them in a disciplinary process, and any relevant contemporaneous evidence.

Mr P Easton v Secretary of State for the Home Department (Border Force) [2025] EAT 15 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal (“ET”)'s decision that the Respondent had fairly dismissed the Claimant for failing to disclose in a job application that he had been previously dismissed for gross misconduct.

The Claimant applied for a role at the Respondent. In a free-text box to describe his employment history, the Claimant only listed years of employment, and not specific months. As such, the Claimant provided no indication of a previous three-month employment gap nor that he had been dismissed by a previous employer for gross misconduct, involving inappropriate behaviour towards females and temper issues. 

The Claimant joined the Respondent. The Respondent subsequently became aware of the Claimant's previous dismissal for gross misconduct and started a disciplinary investigation. It concluded that the Claimant had been dishonest by omitting information from his application and dismissed him for gross misconduct. 

The ET dismissed the Claimant’s unfair dismissal claim and decided dismissal was a reasonable response and fair in all the circumstances. The ET decided it was significant that the Claimant had agreed in his job application to a declaration stating, "I understand my application may be rejected or I may be subject to disciplinary action if I've given false information or withheld relevant details." 

On appeal, the Claimant stated that the application form lacked guidance and did not specify a requirement to include unemployment dates or reasons for leaving previous employers. 

The EAT, however, dismissed the appeal and concluded that the Claimant's arguments were all aired in the disciplinary process and the Respondent's approach had been considered carefully by the ET. It decided that a reasonable applicant would have understood that a full and transparent account needed to be provided in the application form, including information about any gaps in employment.

This case highlights that the level of detail requested in a job application, and the requirement for a declaration in relation to the accuracy and completeness of the information provided, can be highly relevant to the fairness of a subsequent decision to dismiss for the omission of relevant information.  It is therefore important to have robust application processes, with clear guidelines on what information is required. 

Impact Recruitment Services Ltd v Korpysa [2025] EAT 22 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) decided that an employer's genuine but mistaken belief that an employee had resigned may constitute a potentially fair dismissal for some other substantial reason (“SOSR”). 

The Claimant was employed by the Respondent, which is an agency that supplied her services to Howden Joinery Limited ("Howden"). Following the March 2020 national lockdown, the majority of agency staff were told that Howden would be shutting down. Although some agency staff were asked to continue working, the Claimant was not among them, and she was instead "laid off" by Howden. The Claimant contacted the Respondent a week later. The Respondent claimed she asked for holiday pay and her P45 and, accordingly, thought she had resigned. However, the Claimant denied this, arguing she had not asked for her P45 or resigned. After the Claimant received her P45, she brought various claims, including unfair dismissal. 

The Employment Tribunal (“ET”) upheld the unfair dismissal claim, deciding that the Claimant had not requested her P45 – instead she had merely requested a copy of her contract of employment and an advance of holiday pay, which was not a clear and unequivocal resignation. The Respondent was wrong to think the Claimant had resigned and therefore the dismissal was unfair.

The Respondent appealed to the EAT, stating that because it had not been purporting to dismiss the employee at all, it could not have had any reason for dismissal in mind. The Claimant did not participate in the appeal proceedings.

The EAT concluded that the reason for dismissal was a genuine but mistaken belief that the Claimant had resigned. The EAT stated that a mistaken belief is potentially capable of being some other substantial reason justifying dismissal. The ET had failed to consider this. The EAT therefore returned the case to the ET to determine whether the reason for dismissal was a SOSR reason and if so, whether the dismissal was fair or not. Although the EAT concluded that a mistaken but genuine belief could be treated as a SOSR reason, it stopped short of holding that this would always be the case. 

The case highlights the variety of reasons that can come within the definition of SOSR. However, only a belief that is genuine, reasonable and fair in all the circumstances will be capable of amounting to SOSR.

Ter-Berg v Malde and another [2025] EAT 23 (LINK)

In this case, the Employment Appeal Tribunal (“EAT”) found that the Employment Tribunal (“ET”) had incorrectly applied the legal tests for worker status, and provided guidance on determining worker status, particularly in relation to contractual clauses, personal service, and control. 

The Claimant, a dentist and principal of a group of three dental practices, sold the business to Simply Smile Manor House Ltd (“Simply Smile”) and entered into an agreement with Simply Smile to provide dental services. The agreement stated that it did not create an employment relationship and contained a substitution clause that required the Claimant to find a locum replacement during a period of prolonged absence.

After the working relationship ended, the Claimant brought unfair dismissal, whistleblowing detriment and holiday pay claims, arguing that he had been an employee or a worker. The ET initially found that the Claimant was not an employee because none of the minimum elements of a contract of employment (i.e. personal service, mutuality of obligation, and control) were present. At a subsequent hearing, the ET found the Claimant was not a worker either, as worker status, which includes a requirement for personal services, would be inconsistent with its previous employment status, finding that there was no personal service. The Claimant appealed the worker status decision to the EAT.

The EAT overturned the ET’s decision and decided that the ET had:

• Made a mistake in its decision on the “personal service” element of the worker status test. It had misapplied case law on substitution and incorrectly relied on “exceptional facts” when, in reality, it had not identified any factors pointing away from personal service. The ET should have found that the personal service element of the worker status test was met;
• Incorrectly assumed that its earlier finding that the Claimant was not an employee meant that he could not be a worker either. The test for worker status has a lower threshold and needs an independent assessment; it is not sufficient to carry over conclusions from the employment status test; and 
• Mistakenly transferred conclusions on parties’ intentions regarding employment status to the question of worker status. References in the contract to being “self-employed” or an “independent contractor” were potentially ambiguous and not determinative of whether the Claimant was a worker; therefore, such words have to be considered carefully on each occasion and the ET needs to consider whether, despite these labels, the Claimant actually met the legal definition of a worker.

The EAT returned the case to a fresh ET to determine whether the Claimant is a worker in light of the above guidance. 

This decision highlights that an ET will focus on the reality of the working relationship, rather than labels in the contractual documents, to determine employment or worker status.  It also serves as a reminder that there is a “lower pass mark” for worker status compared to that required for employee status. Conclusions in relation to employment status cannot automatically be transferred to the question of worker status. The case also demonstrates the various overlaps and distinctions between the tests for worker and employment status, and where both issues are relevant, they should be considered together.