28 March, 2019
The Employment Appeal Tribunal ("EAT") has recently ruled upon whether adverse treatment of a gay Head Teacher can constitute constructive dismissal and sexual orientation discrimination. In Tywyn Primary School v Aplin, the EAT upheld the decision of the Employment Tribunal ("ET") that a Head Teacher suffered sexual orientation discrimination and constructive dismissal refusing the School's appeal.
Mr Aplin (42) had been a teacher for 19 years, the Deputy Head since 2009, and Head Teacher with effect from 1 September 2015. He was openly gay and the governing body of the School were aware. In August 2015, he met two 17 year olds through the Grindr app. After two meetings, the three of them had sex. The matter came to the notice of the police and the Local Authority's Social Services Department and a Professional Abuse Strategy Meeting (PASM) was arranged for late August 2015. On 1 September 2015 Mr Aplin was suspended from duty and a further PASM was held on 20 October 2015. It was established the individuals he met had full capacity to consent to sex, no criminal offence had been committed and no child protection issue arose. Despite this finding, the PASM recommended that the School consider disciplinary action against Mr Aplin. An investigation was conducted to consider whether Mr Aplin's "course of conduct" brought the reputation of the School into disrepute, impacted on 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 and, therefore, to call into question his continuation in the role.
A disciplinary hearing took place on 17 May 2016. Despite requests, he was not supplied with the PASM minutes or the police material. Following the hearing, Mr Aplin was dismissed on the basis that although his actions were not a breach of the criminal law, his inability to consider the potential impact on the reputation of the school called into question his judgment as to undermine the necessary trust and confidence in him. Following what Mr Aplin perceived to be an inadequate appeal process he resigned and issued a claim at the ET.
The investigation report was heavily criticised by the ET for approaching the case on the basis that Mr Aplin was a potential danger to children, and for drawing selectively on the PASM minutes and police material which were not made available to Mr Aplin. There were also factual and objectivity concerns, and it was criticised for being laden with value judgments and conclusions which were hostile to Mr Aplin. The ET also identified other failings in the disciplinary procedure which the ET found breached the implied term of trust and confidence in Mr Aplin's contract of employment. The launch of an appeal by Mr Alpin was considered an affirmation of his employment contract, and the handling of the appeal also amounted to further breach of the implied term which entitled Mr Aplin to resign and claim constructive dismissal. Mr Aplin's claim that he had been subjected to direct discrimination under section 13 of the Equality Act 2010 was also successful.
The School appealed the findings at the EAT. On the constructive dismissal point, the EAT held that the ET was wrong to find that bringing the appeal gave rise to an affirmation of the employment contract. Instead, Mr Alpin was giving the School an opportunity to remedy the breaches. The finding of discrimination was upheld as there were sufficient facts from which an inference of discrimination could be drawn. The investigating officer had not given an adequate alternative explanation for his conduct and the finding of discrimination was accordingly upheld.
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