The Employment Appeal Tribunal (EAT) has held that an openly gay head teacher was constructively dismissed following a flawed disciplinary process that had considered whether he had brought the school into disrepute by having sex with two 17 year old boys. The EAT found that there were significant failings in the disciplinary process which had breached trust and confidence, entitling the head teacher to resign. The EAT also held that an inference could be drawn that sexual orientation discrimination had arisen due to the investigating officer showing unconscious bias.
In the case of The Governing Body of Tywyn Primary School v Aplin, the Claimant was an openly gay head teacher who had met two 17 year old boys on the dating app, Grindr, and the three of them had sex. The Local Authority investigated the matter and concluded that no criminal offence had been committed and no child protection issues arose, however, it was recommended that the school consider disciplinary action against Mr Aplin.
The school brought disciplinary proceedings and the investigating officer, Mr Gordon, was asked to consider whether Mr Aplin’s conduct had:
- brought the reputation of the school into disrepute;
- impacted his ability to undertake the role of head teacher; and/or
- demonstrated so gross an error of judgment as to undermine the school’s confidence in him.
Mr Gordon produced a heavily criticised investigation report focusing on whether Mr Aplin was a danger to children, selectively drawing on the Local Authority’s report and police material which was not made available to Mr Aplin and failing to produce a factual and objective report, instead producing a report ‘laden with value judgments and conclusions which were hostile to Mr Aplin’.
Following the investigation report, Mr Gordon advised a panel of school governors, overstepping his fact-finding role, and the governors subsequently decided to dismiss Mr Aplin, regarding his role as untenable.
Mr Aplin appealed against the decision based on the bias and unfairness of the investigation report, the failure to disclose evidence and his belief that the hearing was driven by homophobic beliefs. Following further procedural errors at the appeal stage (such as not being given access to the evidence the decision was based on) Mr Aplin resigned, claiming constructive dismissal. He brought Tribunal claims of unfair dismissal and sexual orientation discrimination.
The Employment Tribunal found in favour of Mr Aplin, finding that the investigation report and procedural failings in the disciplinary procedure amounted to a breach of trust and confidence. The Tribunal also found that Mr Gordon had displayed a lack of objectivity in presenting his findings, demonstrating unconscious bias. The Tribunal considered there was sufficient material for an inference of sexual orientation discrimination to be drawn.
On appeal, the EAT upheld the decision that Mr Aplin had been constructively dismissed and confirmed that the tribunal was reasonable in concluding that the investigating officer had shown unconscious bias.
This case acts as a reminder of the importance of following a fair process before dismissing employees, even where it seems clear that any dismissal would be for a fair reason. Following a fair procedure includes, as we have seen in this case, having an objective investigation process, allowing those being investigated to access the evidence being relied on and ensuring that investigating officers are provided with clear instructions on the scope of their investigation.
In relation to the unconscious bias point, direct discrimination (in this case sexual orientation discrimination) is unlawful, no matter what the motive or intention behind it. Showing direct discrimination will usually involve an analysis of the employer’s reasons for treating the employee less favourably. However, it is not necessary for the employee to show that the employer discriminated consciously. Subconscious or unconscious discrimination is also prohibited. In this case, there was no suggestion of a smoking gun of obvious homophobia, but the tribunal found that the way the investigating officer conducted himself was so egregious that unconscious bias was found.