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13 May 2019

166: Sexual orientation discrimination could be inferred from flawed investigation and disciplinary process

In The Governing Body of Tywyn Primary School v Aplin, the Employment Appeal Tribunal (the EAT) held that a gay headteacher was entitled to resign and claim constructive dismissal in response to a flawed disciplinary procedure involving investigations into his sex life, and that sexual orientation discrimination could be inferred from the facts.

Mr Aplin, who is openly gay, was the headteacher at Tywyn primary school. He was investigated by the local authority after he had sexual relations with two 17 year old boys he had met on a gay dating app. This investigation concluded that no criminal act had been committed and no child protection issues arose. The school carried out its own investigation to consider whether Mr Aplin’s actions had brought the school into disrepute or undermined his ability to continue as headteacher. Despite having a clearly defined fact-finding role, the investigating officer’s report lacked objectivity and approached the case as though Mr Aplin posed a child protection risk, despite the local authority’s findings to the contrary. The report also contained many value judgments and conclusions which were hostile to Mr Aplin. There were a number of other procedural flaws, including failing to provide Mr Aplin with all relevant documentation and only informing him at the last minute that the school had instructed a barrister for his appeal hearing. Mr Aplin resigned and brought claims of constructive unfair dismissal and discrimination on grounds of sexual orientation.

The Employment Tribunal held that the entire disciplinary process was so flawed that it amounted to a breach of trust and confidence. Mr Aplin’s claim of constructive dismissal therefore succeeded. The Tribunal also found that in the absence of another explanation for the investigating officer’s lack of objectivity, an inference of sexual orientation discrimination could be drawn. Although the Tribunal held that the school governors had not fulfilled their roles as panel members properly, it did not find that this was on grounds of sexual orientation discrimination. The EAT dismissed the school’s appeal, agreeing that the flaws in the disciplinary process were so serious that they gave rise to a claim for constructive dismissal and that there were sufficient facts from which an inference of sexual orientation discrimination could be drawn. The EAT also partly upheld a cross-appeal by Mr Aplin, finding that the Tribunal had not considered why the panel members had failed to fulfil their roles properly. The question of whether there was sexual orientation discrimination by the school governors was therefore remitted to the Tribunal.

This case highlights the need to conduct investigations and disciplinary procedures fairly, objectively and consistently. For example, investigation reports should not contain any value judgments or conclusions on the employee’s culpability. It is also vital that the employer has adequate reasons for any actions taken. Where an employee has a protected characteristic under the Equality Act 2010, employers should be particularly alert to the possibility of unconscious bias by individuals involved in the investigation and decision-making process.

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