A school inspector dismissed for brushing water off a pupil’s head won his unfair dismissal claim against OFSTED.  Mr. Hewston worked as a Social Care Regulatory Inspector and, on the 8th of October 2019, during a school inspection, he brushed water off the head and touched the shoulder of a young boy who had been caught in a rainstorm. The school reported the incident to OFSTED as a case of ‘inappropriate touching’ in an 11-page letter.

Disciplinary proceedings were instituted, and he was summarily dismissed for gross misconduct, despite his hitherto immaculate disciplinary record. Throughout the disciplinary process, Mr. Hewston maintained that his conduct was appropriate, even though he would not have done it again due to the trouble it had caused him. Mr. Hewston brought proceedings against OFSTED for both unfair and wrongful dismissal, both of which were dismissed. However, he successfully appealed at a tribunal, which found that the claimant had been unfairly dismissed, as OFSTED did not have a policy in place prohibiting physical contact with a child, nor any disciplinary rules defining touching as gross misconduct.

Section 94 of the Employment Rights Act (ERA) 1996 gives employees the right not to be unfairly dismissed, and the absence of published guidance or disciplinary rules on physical contact is dispositive. Indeed, the lack of any such guidance would result in the claimant not knowing that what he was doing was “so seriously wrong as to justify dismissal”.

The decision also makes it clear that a person cannot be dismissed because they did not show the ‘right’ reaction and insight during a disciplinary hearing. The fact that Mr. Hewston would never act the same way because of the trouble it caused him, rather than because he admits his action was ‘wrong’, is irrelevant; the salient point being that he would not do it again.

Employers must ensure that they have the right guidance and policies in place if a certain form of conduct is deemed inappropriate in their field; otherwise, any subsequent dismissal could be regarded as unfair. Your employees must be able to know what behaviours are reasonably expected from them.

Kau Media Group (KMG) Ltd. sought to enforce two post-termination employment restriction (PTRs) contained in a contract of employment to restrict Mr. Hart, a former employee, from working for his proposed new employer, MiSmile Media Ltd. (MML).

Mr. Hart had worked for KMG from November 2020 to late 2024 as an Account Director. From 2021, the defendant became Account Director for MML, a longstanding client of KMG. On the 19th of September 2024, Mr. Hart informed Mr. Khokhar of KMG that he had since taken a job at MML despite being offered more favourable terms, having been approached by the CEO of MML. Mr. Khokhar however made it clear that taking such a job was against the terms of Mr. Hart’s contract.

On the 25th of September 2024, Mr. Hart inaccurately told the claimant he had already signed a contract with MML, before proceedings were started on the 13th of December 2024. The High Court however concluded that KMG did not establish that the PTRs were enforceable with respect to confidentiality and refused the application for injunctive relief on the grounds of ‘restraint of trade’.

The onus was on KMG to demonstrate that the PTRs were reasonable, protected its legitimate business interests, and that any restrictions were commensurate with the benefits secured under the contract. Even though the services provided by MML and KMG were overtly identical, making them potential competitors, the work involved did not comprise a core part of KMG’s dental sector business and thus MML was not effectively in direct competition with KMG. Settled case law has established that legitimate interest does not cover “the skill, experience, know-how, and general knowledge" acquired by an employee, in order to rely on this interest, KMG should have demonstrated ‘objective’ knowledge.

Thus, before incorporating or seeking to enforce any PTRs, ensure that any PTR relied upon is reasonable between the parties, protects the company’s legitimate business interests, and does not venture beyond these demarcations, or else the PTR may be rendered void and unenforceable.

A Tribunal has ruled that a deputy security manager was unfairly dismissed, despite performing “no prescribed tasks” while ‘working from home’, many hundreds of miles from his place of work. Mr. Kitaruth travelled from London to Cornwall to visit with his parents for four days, during which the hearing found no evidence that he did any work.

When his line manager, Mr. Stride of OCS Security Ltd., summoned him to a mid-week meeting in the office he learned of Mr. Kitaruth's location leading to his subsequent dismissal for "gross misconduct". However, Mr. Kitaruth won his case for unfair dismissal after the Tribunal found that the company had failed to interview the line manager during their investigation.

Mr. Kitaruth told the Tribunal that he had an informal arrangement in which he verbally agreed with Mr. Stride on the dates that he would ‘work from home’, as August was a quiet month at the conference centre. The Tribunal found that Mr. Kitaruth “genuinely believed he had been given permission” although there was possibly of a misunderstanding arising between himself and his line manager, as evidenced by the message train on WhatsApp. Despite the pretext of 'working from home' there was no evidence that he had performed any tasks and, although he responded to "calendar invites, phone calls, liaising with the officers and emails,” he did not do so in a timely manner.

Judge Tamara Lewis noted that it was “extremely poor practice” for the company to take just six weeks to investigate and dismiss Mr. Kitaruth, and then to take a further seven and a half months to hear and reject his appeal. Moreover, the Judge found that "no reasonable employer would have failed to interview Mr. Stride formally before reaching a decision to dismiss the claimant," and hence, "For this reason, the dismissal was unfair.”

Employers should always publish, adopt, and follow to the letter any formal disciplinary procedures before terminating the employment of any contracted employee.

A complex celebrity case arose recently in which the First-tier Tax Tribunal (FTT) was asked to consider the application of the intermediaries’ legislation (IR35), otherwise known as off-payroll working, to payments made by Manchester United Football Club (MUFC) to Bryan Robson Ltd.

This appeal was in relation to determinations of income tax made under Reg. 80 of the PAYE Regulations and s31 of the Taxes Management Act (TMA) 1970  for personal appearances provided to MUFC by Bryan Robson Ltd. as a ‘global ambassador’ from 2015/16 to 2020/21. Those agreements included a licence for MUFC to exploit Mr. Robson’s “image rights” and required the former England star to make 35 personal appearances per year at MUFC’s request for a fixed sum. Although the image rights were not subject to the IR35 legislation and were left to be decided separately, and the additional tax due under the IR35 rules is to be determined.

This technical tax case highlights the intricate factors that determine employment status under IR35 and anyone providing such personal services, including freelancers, content creators, and contractors, has to demonstrate a high level of autonomy to be considered truly self-employed and present watertight contracts to the HMRC. 

The Employment Appeal Tribunal slashed a £10,000 award for injury to feeling by 80% after an original tribunal ruling was deemed not to be Meek compliant as it failed to provide adequate reasons for the quantum awarded. A Miss Graham was employed by Eddie Stobart Ltd. for just over ten months as a planner when she became pregnant and immediately notified her line manager. Miss Graham asserted her right to be offered suitable alternative employment during her maternity leave under the MAPLE Regulations. She was interviewed for a new role but was unsuccessful and was terminated by reason of redundancy although her grievance Email to HR was blocked by the firewall.

Miss Graham complained that she had been "automatically" and unfairly dismissed as per Section 99 of the Employment Rights Act 1996 on the basis that the new role should have been given to her in priority to others who were not on maternity leave. The first Tribunal found that Miss Graham had not been unfairly dismissed but upheld her claim of detrimental treatment and pregnancy/maternity discrimination and awarded £10,000 for injury to her feelings. Eddie Stobart Ltd. appealed and the second tribunal found the award excessive given that she had soon found alternative employment and had not endured prolonged suffering.

This case underscores the importance of presenting evidence supporting any claim for injury to feelings in the form of a ‘checklist’, although HR departments should note that those who are forced to chase up their grievances during allocated maternity or paternity leave may have grounds for such claims, however excessive or seemingly irrational.