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27th March 2019

Tribunal Tale – Tywyn Primary School v Aplin

The facts of the case

Mr Aplin was an openly gay 42 year old head teacher. In 2015 he met two 17 year olds on the gay app Grindr and had consensual sex with them. The local authority investigated the issue and found that no child protection issue arose, but suspended Mr Aplin and raised disciplinary proceedings.

Mr Gordon, a local authority employee, produced an investigation report that was later found by the ET to be heavily biased, laden with ‘value judgments’ and referred to information that Mr Aplin was not given access to despite repeated requests.

The disciplinary hearing was chaired by three governors, with support from a local authority lawyer (Mr Hodges), with Mr Gordon presenting the school’s case. The school decided to summarily dismiss Mr Aplin, referring to the school’s reputation and it being untenable for him to continue as head teacher. A follow-up letter was then drafted by Mr Hodges but was not checked by the disciplinary panel before being issued.

The ET pointed to a number of errors in procedure, such as Mr Aplin not being given certain evidence before the hearing, Mr Gordon presenting the school’s case in contradiction of the wording of the relevant policy, Mr Gordon presenting the case in a way that was ‘far from objective’ and Mr Hodges appearing to make the decision to dismiss Mr Aplin on his own. In addition, Mr Aplin’s contract stated that he should not have been dismissed until after an appeal.

Mr Aplin did appeal, which under the terms of his contract meant that his employment continued. However, there were further procedural issues, including unreasonable delays and changes that were not intimated to Mr Aplin. Mr Aplin eventually resigned and claimed constructive dismissal and sexual orientation discrimination.

The ET’s decision

The ET found that the procedural failings in the disciplinary and appeal processes constituted a breach of the school’s implied duty of trust and confidence and as such upheld the claim of constructive dismissal. The ET also upheld the discrimination claim against Mr Gordon (and therefore the governing body) finding that he treated Mr Aplin less favourably than he would have treated a heterosexual colleague.

In making that decision the ET referred to Mr Gordon reaching ‘adverse conclusions’ during the investigation process (as opposed to only fact-finding), expressing those conclusions in a forceful way, having personal investment in the outcome of the process and his ‘biased and irrational approach’ towards Mr Aplin. Mr Gordon did not help himself at the ET in that he was not able to recognise his bias or offer any explanation for it. The school appealed on both the constructive dismissal and discrimination grounds.

The EAT’s decision

The school lost their appeal on both grounds. While there were questions over Mr Aplin’s employment continuing during his appeal, the EAT agreed that his employment continued due to the appeal and that the subsequent mishandling of the procedure entitled him to resign and claim constructive dismissal.

In relation to discrimination, the EAT agreed with the ET that the failings were so unreasonable that it was possible to infer that there was a discriminatory aspect to the procedure. The burden of proof therefore shifted to the school to explain their course of action, and Mr Gordon for his part was unable to do so. As a result, the EAT upheld the sexual orientation discrimination claim.

What does this mean?

This case at its essence is one of a poorly handled disciplinary procedure that was tainted from the outset by prejudice on the part of Mr Gordon. The lesson therefore is to ensure that anyone tasked with investigating issues such as these does so from an objective standpoint that is not affected by their personal views on the employee under investigation or the circumstances in the background. Had Mr Gordon taken such an approach, the decisions in relation to discrimination may have been different.

And of course, as always, employers should follow a compliant and fair procedure in cases of discipline, with the employee having access to the relevant evidence. Otherwise, it is almost certain that a finding of unfair dismissal (constructive or otherwise) is likely to follow.

If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

27th March 2019