Was a head teacher discriminated against for being gay?
Did the treatment of a gay head teacher amount to constructive dismissal and sexual orientation discrimination?
When conducting an investigation and disciplinary process it is crucial to ensure it is carried out fairly and objectively. Failure to do so increases the risk of the employee resigning and claiming constructive dismissal and that the dismissal is unfair.
Biased and subjective disciplinary processes are particularly precarious where the employee has a protected characteristic as it increases the risks of a claim of discrimination under the Equality Act 2010.
The case of The Governing Body of Tywyn Primary School v Aplin concerned a Head Teacher, Mr Aplin, who met and had sex with two 17 year-old males via a gay dating app. The police became aware and subsequently the local authority set up a Professional Abuse Strategy Meeting (PASM) which found that no criminal act had been committed and that no child protection issue arose. However, the PASM did recommend that the school consider disciplinary action.
The local authority briefed an investigating officer (Mr Gordon) to consider the impact the incident had had on the reputation of the school and of Mr Aplin and whether this called into question his continued role as head teacher. However Mr Gordon's investigation report, which was later heavily criticised at tribunal, used selective parts of the PASM report and police materials and approached the case on the basis that Mr Aplin posed a child protection risk, despite the PASM's findings to the contrary. Mr Gordon's report was also found to be 'laden with value judgments and conclusions which were hostile to Mr Aplin, despite Mr Gordon receiving clear guidance to produce a factual and objective report.
The disciplinary hearing suffered from a number of procedural issues, including the fact that Mr Aplin was not given access to the PASM report and relevant police materials that the investigating report relied on.
Mr Aplin appealed on a number of grounds, complaining of the unfair investigation report and various procedural issues. Following further procedural failings in relation to the appeal, Mr Aplin resigned. He brought claims of constructive and unfair dismissal and discrimination on grounds of sexual orientation.
The tribunal found that Mr Aplin had affirmed (i.e. continued) his contract by appealing against his dismissal, but that the continued procedural errors relating to his appeal process entitled him to resign. His claim of constructive dismissal therefore succeeded.
On the issue of discrimination, the tribunal found that Mr Gordon had discriminated against the claimant on the basis of his sexuality and that the governing body was vicariously liable for this treatment. The tribunal did not agree with the claimant that the school governors or other local authority staff involved had discriminated against him.
Employment Appeal Tribunal
The EAT found that the tribunal had erred in its decision that Mr Aplin had affirmed his contract. Rather, Mr Aplin had simply given his employer a chance to remedy the breaches. This did not affect Mr Aplin's ability to then resign in the face of continued breaches of the appeal process.
The EAT agreed in the main with the tribunal's decision in regard to discrimination. However, the EAT remitted to the same tribunal the question of whether the school governors' "abdication" of responsibility for the dismissal decision to a local authority lawyer was itself discriminatory.
This case highlights the importance of following a fair and objective disciplinary process when dealing with employees, particularly ensuring that investigation reports make factual findings but do not include value judgments or conclusions on culpability. It is possible that, had a fair, objective and well-managed disciplinary process taken place in respect of Mr Aplin, he would have found himself being fairly dismissed from his position.
Employers should be sensitive to the personal bias of key members of a disciplinary process and of the need to guard against these biases creeping into decision-making process. Employers should remain especially vigilant where background circumstances, such as in this case, put an employee's protected characteristic at the core of the circumstances being investigated.
If you would like to discuss any aspect of this article further, please contact Michael Crowther or any other member of the Employment team on 0113 244 6100.
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The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.