UNISON finds Ofsted ‘inadequate’
Andy Hewston (pictured above) first began working in children’s residential care settings when he was 20. He eventually moved into an inspection and regulation role and now, aged 58, he has spent his entire professional life working around children, including some of the most vulnerable children in Britain.
But, six years ago, something happened which caused him to question whether he would ever work again.
In 2019, Andy was working as an Ofsted inspector when he did a routine inspection at a boarding school in the West Midlands. Andy was an experienced inspector who had worked for the regulator for 12 years. He’d done countless inspections of care homes, secure schools and residential schools, and Ofsted had paid for him to complete his masters in inspection and regulation.
During the visit, a group of pupils had come in from a rainstorm and Andy brushed water off a 12-year-old boy’s forehead and put his hand on his shoulder.
“It was a very simple situation,” Andy explains. “I wiped a drop of rain off his forehead and said, “You look like a drowned rat, are you alright?”
Little did Andy know at the time that this would cause him to lose his job.
A consultant who was working for the school, who was present at the time, raised the interaction between Andy and the boy as a concern with the headteacher. The headteacher then sent Ofsted a detailed letter of complaint, which featured this incident among other issues they had. Ofsted then raised Andy’s interaction as a safeguarding breach. Disciplinary proceedings began and an investigation was opened. “That’s when it started to unravel,” Andy says.
“Ofsted contacted the LADO, which is the local authority designated officer. What the LADO wants to know is whether it’s serious enough to warrant an investigation or not, and they want to know about every aspect of your life that involves children.”
At the time, Andy was a school governor and also involved in the local junior rugby club, and the LADO contacted them to tell them that there had been an allegation against him.
“When you consider what the allegation was, which was a caring gesture towards a child, and then that being turned around as inappropriate touch, it feels very aggressive,” he says. “It was horrible.”
Difficult relationship
Andy feels as though the whole investigation was biased against him. The school that had made the complaint had a difficult relationship with Ofsted, after having repeatedly being rated as ‘inadequate.’
“When I said, ‘Look, this is a school that makes complaints all the time,’ it wasn’t listened to,” he says. To add to this, disciplinary proceedings were led by a senior manager who Andy had, several months before, tried to complain to about bullying he had experienced from his own line manager, to no avail. Throughout the procedure, the pupil’s statement was also not shared with Andy.
“I come from a very caring background, which is very much hands-on and let’s make sure kids are feeling OK,” Andy explains.
Throughout the disciplinary process, he maintained that his conduct toward the child had not been inappropriate, but that he would not do anything of the kind again given all the trouble that it had caused him.
This, however, was then interpreted by the employer as a lack of contrition for what he had done. Ofsted used both the initial incident, and his defence throughout the disciplinary process, to dismiss him for gross misconduct.
His dismissal letter stressed that he was not considered a safeguarding concern, was not a risk to children and had not done anything amounting to harm. Ofsted did not have any policy prohibiting physical contact with a child, nor any disciplinary rules that defined what type of touch would be considered misconduct.
In fact, it had not given its employees any guidance on the subject. But Ofsted’s view was that, as a senior and experienced inspector, he should not have initiated uninvited physical contact with a child, and in doing so had “brought Ofsted into disrepute”.
Andy was devastated. After a decades-long career, he found himself unemployed and unsure whether he’d ever be able to work again. His three children were anxious about what had happened, and his wife suddenly became the sole breadwinner for their family. When he went for job interviews and they asked him why he’d left his last position, he found himself in tears. “It hardly showed resilience,” he says.
Andy’s fight for justice
Andy describes UNISON as a ‘lifeline’ for him at the time. UNISON’s lead representative for Ofsted, Carolyn Thompson, had supported him throughout his disciplinary process and, when he lost his job, UNISON supported Andy to issue a claim against Ofsted for wrongful and unfair dismissal. The case went to the employment tribunal.
Andy waited 18 months for the tribunal, which had a five-day hearing in 2021. To his disappointment, the tribunal dismissed his claim. The tribunal judge found 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, which amounted to gross misconduct.
On UNISON’s advice, and with support from UNISON’s national officer for Ofsted, Ben Thomas, and solicitor Ann Rooney from Thompsons, Andy decided to appeal the tribunal’s decision. “The solicitor said, ‘Look, this isn’t right, Ofsted have treated you really badly.’ Whenever I spoke to anybody, there was an incredulity about what kind of process I was having to go through from people I was working with.”
After another two years, and almost four years after he had initially lost his job, in June 2023 the case finally went to the Employment Appeal Tribunal (EAT). Andy won. The EAT concluded that Ofsted had unfairly dismissed him. This was on the basis that his dismissal had been both substantively and procedurally unfair. In the absence of any published guidance or disciplinary rules on what kind of touch was considered inappropriate, the EAT said that the employer had approached the situation in the wrong way.
Furthermore, the EAT found that during the initial disciplinary proceedings, Ofsted had been wrong to interpret Andy’s insistence that the touch had not been inappropriate as a lack of ‘insight.’ Receiving the news, Andy says, was “awesome.”
‘Soul-destroying’
However, two weeks after Andy found out he’d won, he got the news that Ofsted was planning to appeal this decision once more. “It was soul destroying”, Andy says. “It was as though Ofsted were just throwing money at it to see when I’d break. When I heard they were going to appeal again I just thought, why? Why?”
In 2024, when Andy’s case went to the Court of Appeal, again with UNISON’s support, and this time with Bruce Robin, UNISON’s in-house senior legal officer representing him, the court upheld the EAT’s decision.
Unusually, the judges gave their judgment on the day the case was heard, saying that Andy shouldn’t have to suffer any more. In a written judgment provided in March 2025, they considered Andy’s case in its fuller context, stating there was a “pre-existing poor relationship” between Ofsted and the school, and that the original letter of complaint was “redolent with hostility.”
One of the appeal judges, Lord Justice Warby, said that Andy’s conduct did not merit dismissal and that Ofsted had failed to make it clear to Andy in advance that he would be dismissed for behaving in the way that he did.
“I think the root cause may be that Ofsted had not clearly identified in its own mind what was wrong about the claimant’s behaviour,” he said, particularly as Ofsted did not have a‘no touch’ policy.
‘If UNISON hadn’t supported me, it would have been 30 years of my reputation taken out by a sledgehammer’
Moving on
After six long years, Andy is finally starting to put the ordeal behind him. He now has a very busy practice as a consultant, and the final stage in the legal proceedings will be a hearing with the employment tribunal in November 2025. This is to decide whether he will be re-instated as an Ofsted inspector or awarded compensation only.
Andy has also found comfort in knowing that, while his original dismissal felt very personal, the bigger legal issues that have since emerged from the case could help otherpeople in similar situations.
After news coverage of his case, Andy says several people have got in touch with similar issues. “I’ve had people get in touch with me through LinkedIn saying, ‘I’m going through this with Ofsted, this is really difficult. How did you manage to get through this?’
“When they ask for my advice, I tell them to be in a union. Let’s be honest, if UNISON hadn’t supported me, it would have been 30 years of my reputation taken out by a sledgehammer, and I’m not sure what would have happened.”
He’s pleased that his case has also gone on to shape employment law. “I’ve got a friend of mine whose daughter is completing a law degree. She texted him the other week to say, ‘I’ve just had a lecture all about Andy!”
Shantha David, UNISON’s head of legal services, says: “UNISON saw the strategic importance of this case as being important for Andy and all others who have been unfairly dismissed for alleged misconduct. The comments from the Court of Appeal highlight the way in which common sense ought to have prevailed.”
Ben Thomas, UNISON’s national officer, says: “I was really shocked when I first heard about Andy being sacked. It was important for UNISON to take a stand on this case as not only was it so blatantly unfair, but it could also affect all our members in Ofsted and other workplaces who work with childrenand might face similar accusations.
“It’s been a long journey for all involved in this case. Going through the tribunal process can take a real toll on people. Andy has shown great fortitude and resilience throughout these last six years to fight for the justice he deserves.”
UNISON general secretary Christina McAnea adds: “Andy Hewston’s career was cruelly and unnecessarily cut short by Ofsted. He never should have been sacked and Ofsted shouldn’t have wasted public money pursuing him needlessly through the courts.
“Hopefully Andy’s long ordeal is now finally drawing to a close. This case is a sobering reminder of how important it is for all employees to belong to a union. No one knows when something might go wrong at work and lives can so easily be turned upside down by groundless accusations like those made by Ofsted against Andy.
“The union is delighted that it was able to step in, support Andy and expose Ofsted’s dreadful behaviour. But it should never have come to this.”
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