25 April 2019

Was a Head Teacher discriminated against on grounds of his sexual orientation?

In The Governing Body of Tywyn Primary v. Mr M Aplin, the Employment Appeal Tribunal (EAT) held that the unfair treatment of a gay Head Teacher was serious enough to support the claims brought by him for constructive dismissal and sexual orientation discrimination.

Facts

In August 2015 Mr Aplin, an openly gay Head Teacher, had consensual sex with two 17 year old males he met on a dating app. The police and local authority were notified, Mr Aplin was suspended and a Professional Abuse Strategy Meeting (PASM) was held.

It was found that Mr Aplin had not committed a criminal offence and posed no child protection risk (neither of the individuals involved were students at the School). Nonetheless, the local authority advised the School to carry out an investigation into Mr Aplin’s conduct.

A local authority officer was appointed to conduct the disciplinary investigation and was asked to consider, in particular, whether Mr Aplin’s conduct brought the reputation of the School into disrepute and impacted on his ability to undertake his role as Head Teacher.

The investigating officer produced a report which the Governors relied on heavily when they made the decision to conduct a disciplinary hearing. At the hearing Mr Aplin was dismissed with immediate effect.

Initially, Mr Aplin appealed against this decision but due to various procedural failings he resigned before the appeal hearing and issued a claim in the Employment Tribunal of constructive dismissal and discrimination on grounds of sexual orientation.

The Employment Tribunal (ET)

The ET found in Mr Aplin’s favour noting that the investigation report produced by the investigating officer was subjective, conveying the officer’s own value judgments and conclusions, and was not factual nor objective.

Whilst the ET found that Mr Aplin had affirmed his contract of employment by appealing against his dismissal, the further procedural errors in the appeal process entitled him to resign and claim constructive dismissal.

The ET agreed that the investigating officer had discriminated against Mr Aplin based on his sexual orientation and found the School’s governing body vicariously liable for this. In reaching this conclusion, the ET made the following findings:

1. there was reason to believe that Mr Aplin’s sexuality underpinned the treatment he received throughout the disciplinary process;
2. there had been serious failings in the way he was treated; and
3. these were severe enough to enable the ET to infer that there was a “particular reason” for the failings and that Mr Aplin had been treated less favourably as a result of his sexual orientation.

The EAT

The EAT rejected the School’s appeal, largely agreeing with the ET’s findings. The only exception to this was that the EAT disagreed with the ET’s finding that Mr Aplin’s appeal against his dismissal was an affirmation of his contract. The appeal simply offered an opportunity for the School to rectify its prior procedural breaches. This did not impact on Mr Aplin being entitled to resign in response to the procedural failings and claim constructive dismissal.

Impact on schools

This case serves as a helpful reminder for schools to ensure that they conduct disciplinary procedures fairly and objectively, that the employee is provided with regular updates regarding the progress of the investigation and that the employee has access to all appropriate information, data and documentation to enable them to properly respond to the allegations. Had a fair and objective process been followed in this particular case it is quite possible that the dismissal would have been considered fair and lawful in the circumstances.

It is also an important reminder to ensure that subjective and personal biases, particularly relating to protected characteristics, are not allowed to pervade disciplinary investigations and/or decisions.

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About the Author
Oliver Daniels, Senior Associate Solicitor
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