Serious failings and bias throughout the disciplinary process entitled a gay head teacher to resign and claim constructive dismissal and sexual orientation discrimination.
Facts
In The Governing Body of Tywyn Primary School v Aplin, Mr Aplin was a 42 year old openly gay head teacher at a primary school. He met two 17 year old boys on Grindr and the three of them had sex. The matter came to the attention of the police and social services who investigated and concluded that no criminal offence had been committed and there were no child protection issues.
The School began a disciplinary investigation to consider whether Mr Aplin’s conduct had brought the School into disrepute, undermined his ability to fulfil his role or displayed a gross error of judgment. The investigating officer, Mr Gordon, produced a report which the employment tribunal criticised for lacking objectivity, approaching the case as involving child protection issues (despite social services’ finding that there were no child protection concerns) and drawing selectively on material from the police and social services investigations which were not provided to Mr Aplin, despite his requests.
The employment tribunal was also critical of how the disciplinary hearing was conducted. Mr Gordon presented the management case (although the school’s procedures provided that an investigating officer should not do so) and he did so in a way which was “far from objective”. In addition, Mr Hodges, the local authority lawyer whose role was to assist the disciplinary panel retired with the panel members and he made the decision, not the governors.
Mr Aplin was dismissed as his position was untenable and he appealed. Both Mr Aplin and the School proceeded on the basis that the appeal resurrected his employment contract.
The appeal was to take the form of a complete rehearing. However, there were further procedural failings, with the School still not providing Mr Aplin with the materials relied in the investigation report, deciding at the last minute to instruct a barrister, not telling Mr Aplin promptly that he was entitled to legal representation (leading to delays) and deciding to change the date of the appeal hearing to a later date without consulting him.
Mr Aplin resigned and brought claims for constructive unfair dismissal and direct discrimination on grounds of sexual orientation. The employment tribunal upheld his claims, finding that the serious flaws in the disciplinary process meant he had been constructively dismissed and were so serious and wide-ranging as to allow an inference to be drawn that they were due to his sexual orientation.
The School appealed to the Employment Appeal Tribunal (EAT).
Decision
The EAT upheld the employment tribunal’s decision.
The tribunal had been wrong to find that Mr Aplin had affirmed the contract by exercising his right of appeal. Instead he had given the school the opportunity to remedy its breach. However, nothing turned on this since the flaws in the appeal process were sufficient on their own to breach the implied term of trust and confidence and give rise to a claim for constructive dismissal.
The tribunal recognised that the whole background was intimately connected with Mr Aplins’ sexuality. In the circumstances, it had been entitled to find that the procedural failings by the School were so bad that it could infer that there was more to it than simply that Mr Aplin had had lawful sex with two 17 year-olds and that, in the absence of any other explanation, discrimination played a part.
Implications
Employers need to ensure that those conducting disciplinary investigations and hearings follow internal procedures, approach matters objectively and do not let their personal views affect their handling of the matter. Diversity and unconscious bias training may assist with this.
Employees should be provided with the evidence the employer is relying on in advance of the disciplinary hearing and the roles of all involved in disciplinary procedures should be clearly delineated. The Acas Code of Practice on disciplinary and grievance procedures indicates that different people should be responsible for conducting the disciplinary investigation and disciplinary hearing wherever practicable. Case law indicates that HR should be careful to limit their involvement to advising on process and not get involved in issues of culpability.
Finally, it is important to frame disciplinary charges carefully and not to stray into other areas.
For further support on individual cases, please contact your Heads HR Consultant on 0161 850 4343.
