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The recent Employment Appeal Tribunal (EAT) decision in the case of The Governing Body of Tywyn Primary School v Mr M Aplin considered the disciplinary process undertaken by a Primary School against a homosexual headmaster to be flawed, resulting in a finding of sexual orientation discrimination and constructive dismissal. The case serves as a timely reminder to employers that unreasonable behaviour without appropriate explanation, may give rise to a finding of unlawful discrimination through the application of the reverse burden of proof provisions in the Equality Act.

Facts

The Claimant, Mr Aplin was a 42 year old homosexual primary school head teacher. The action which prompted investigation was the fact that he had met and had sexual relations with two 17 year old males by way of the dating app ‘Grindr.’  An investigation was commenced by the local authority which found that no criminal offence had taken place nor were there any child protection issues arising.

The School decided to carry out its own disciplinary investigation and appointed a local authority employee, Mr Gordon as an Investigating Officer. A  report was produced but  was heavily criticised on the basis that there was a lack of objectivity in Mr Gordon’s approach, that it was based on the premise that there was a child protection issue (despite the outcome of the previous investigation) and that it referred selectively to evidence from the previous investigations not made available to Mr Aplin.  The School then based their approach to the matter on the premise that there was a child protection issue.  Mr Aplin was invited to attend a disciplinary hearing where Mr Gordon presented the case on behalf of the School.  Mr Aplin’s position was essentially that what he had done was lawful and part of his private life and that Mr Gordon’s report and the case against him was biased and homophobic.

The School dismissed Mr Aplin on the ground that, although his conduct was not a criminal act, his inability to recognise its impact on his role and the reputation of the school so called in question his judgement as to make his employment untenable.  The contractual procedure in place was such that Mr Aplin’s employment was treated as continuing pending any appeal. Mr Aplin duly then appealed but was not provided with the full evidence relied upon by the panel.  He then resigned, and brought claims for constructive unfair dismissal and sexual orientation discrimination in the Employment Tribunal against the school.

Decision of Employment Tribunal

The Employment Tribunal found that although Mr Aplin had affirmed the contract by appealing (thus giving up the right to claim breach) the subsequent procedural flaws at the appeal stage constituted a breach of trust and confidence and therefore amounted to constructive dismissal.  

In relation to the discrimination claim the ET decided that the “reverse burden of proof” provisions in section 136 of The Equality Act applied these being a special provision which dictate that if there are facts from which it could be inferred that discrimination has occurred then, in the absence of any (non- discriminatory) explanation, the Tribunal must conclude that discrimination has occurred.

This was because there was reason to believe that considerations of sexuality underpinned the treatment of Mr Aplin. The failings in the process were so substantial as to allow the inference that there was a “particular reason” for them which would not have been applied to appropriate hypothetical comparators being a man who had sex with two seventeen year old females or a woman who had sex with two seventeen year old males.  The ET found that Mr Gordon had adopted a biased and irrational approach but in giving evidence was not able to recognise this or offer any explanation for it.  Accordingly the ET concluded that Mr Aplin had been discriminated against on grounds of his sexual orientation. However there was not material to satisfy the burden of proof provisions in the case of the school governors and local authority lawyer involved in respect of their conduct.

The school appealed the constructive dismissal and discrimination finding and Mr Aplin appealed the finding regarding discrimination to the EAT.

EAT decision

The EAT rejected the appeal against the finding of constructive dismissal mainly on the basis that the ET was wrong to conclude that Mr Aplin’s internal appeal amounted to him affirming the contract and  thus waiving the breach. Rather this was a case of the employee making clear his objections to how he had been treated and giving the School an opportunity to make good the breach of the implied term which arose as a result of the flawed disciplinary process.

Crucially in relation to discrimination claim the EAT rejected arguments that the ET was wrong to find against the School in relation to the Investigation Officer’s conduct. This was not a case where unreasonable treatment was the only factor at play. The ET had properly recognised that Mr Aplin’s sexual orientation was right at the centre of the case and the finding that Mr Gordon had an “unconscious bias” against Mr Aplin was the proper basis for the inference that there was more to it than the fact that Mr Aplin had had sex with two 17 year olds. The appeal against the finding of discrimination on the basis of the application of the reverse burden of proof was therefore rejected.

Mr Aplin’s appeal against the rejection of his separate claim of discrimination in relation to the conduct of the School Governors and Local Authority lawyer were remitted (sent back) to the original Tribunal to reconsider the relevant evidence and give sufficient reasons for the conclusion that the School had discharged the burden of proof and so had not discriminated against Mr Aplin.

Comment

This case provides a valuable lesson to employers on how investigations should be dealt with in the context of disciplinary procedures. It is important to ensure the investigator approaches the issues in a measured and impartial manner and that the report does not indicate any predetermination of decisions or hostility to the employee regardless of how inappropriate the investigator may consider the actions in question to have been. The ET found that the investigating officer had failed to produce a report that was factual and objective, “instead producing one that was laden with value judgements and conclusions.”

Guidance in previous case law would suggest that tribunals should not find unreasonable behavior of itself to be a sufficient basis for a finding of discrimination however this case provides a reminder that, with the operation of the reverse burden of proof, unreasonable behaviour for which there is no adequate and non-discriminatory explanation provided can lead to a finding of unlawful discrimination. This can potentially taint (and render unfair as well as discriminatory) the whole disciplinary process and any subsequent dismissal.

If you would like to discuss any of the points raised above please contact a member of our Employment Team.

Eric Gilligan, Partner and Rosie Allan, trainee solicitor.

Chambers Leading Firm 2019

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