Adverse Treatment, Constructive Dismissal and Sexual Orientation Discrimination

Was adverse treatment of a gay head teacher constructive dismissal and sexual orientation discrimination? Yes, held the EAT in Tywyn Primary School v Maplin.

Mr Aplin is an openly gay primary school head teacher. He met two 17 year old males on Grindr and the three of them had sex. The Local Authority set up a Professional Abuse Strategy Meeting to investigate, which concluded that no criminal offence had been committed and no child protection issue arose.

The School nevertheless conducted a disciplinary investigation and following a report, decided to hold a disciplinary hearing. Mr Aplin’s position was that he had acted lawfully, the actions were part of his private life and that the management case against him was biased and homophobic. There were numerous concerning procedural errors during the process of the investigation and the disciplinary hearing. It was concluded at the hearing to dismiss the Claimant. Mr Aplin appealed this decision. He resigned claiming constructive dismissal due to the “inept and unfair” investigations which had influenced the disciplinary panel. He brought a claim in the Employment Tribunal for unfair dismissal and sexual orientation discrimination.

The Employment Tribunal (ET) found that Mr Aplin was (a) unfairly constructively dismissed from his post and (b) discriminated against by the investigating officer, Mr Gordon, on the basis of his sexual orientation. The ET was highly critical of the disciplinary procedure and found the procedural errors amounted to a breach of the implied term of trust and confidence and these errors entitled Mr Aplin to resign. On the discrimination claim, the tribunal found the way he had been treated gave rise to a reversal of the burden of proof and that, in relation to the investigating officer, that burden was not satisfied and that he treated Mr Aplin less favourably than he would have treated a hypothetical comparator because of his sexual orientation.

The School appealed the finding of discrimination on the basis that the ET was wrong to find that the burden of proof had been reversed. This argument was dismissed by the EAT. There were sufficient facts from which an inference of discrimination could be drawn and the reverse onus was justified. The investigating officer had not given adequate explanation for his conduct, which could be taken to show his bias against Mr Aplin, and the finding of discrimination was upheld. On constructive dismissal, the EAT held that the bringing of the appeal did not amount to an affirmation and/or resurrection of the Claimant’s contract; rather it was a case of Mr Aplin making clear his objections to the way he had been treated and giving the School an opportunity to remedy the breaches. The Claimant was entitled to resign and the School’s appeal on constructive dismissal therefore failed.

While the judgement in this case is arguably very specific and dependent on the facts and the major procedural errors during the disciplinary process, it nevertheless serves as a reminder of the possibility of a discrimination case being founded. Schools should always ensure that proper procedure is followed when conducting disciplinary matters and that no personal bias or opinion could be said to have affected the outcome.