The Employment Appeal Tribunal (EAT) has found that the adverse treatment of a gay head teacher was a constructive dismissal and discrimination of grounds of sexual orientation in Tywyn Primary School v Aplin.
The claimant was openly gay. He met two 17 year old males on Grindr and the three of them had sex. A Professional Abuse Strategy set up by the Local Authority concluded that no criminal offence had been committed and no child protection issue arose, however the school brought disciplinary proceedings against him. The investigating officer took the view that child protection issues were involved (despite the findings of the local authority investigation) and overstepped his role by advising the panel of school governors. The school dismissed the claimant (he was not given access to papers seen by the panel in coming to their decision) and he appealed his dismissal. He was once again not given access to all the evidence that the panel had based its decision on, and, based on this and a number of other procedural errors during proceedings, eventually resigned claiming constructive dismissal. He then brought claims for unfair dismissal and sexual orientation discrimination.
His claim for unfair constructive dismissal succeeded due to the continuing procedural errors in connection with the appeal, and the EAT also found that he had been discriminated against on grounds of sexual orientation. The background to the case was intimately linked with the claimant's sexuality, and the procedural failures by the school were so bad that an inference could be drawn that there was more to it than the fact that he had had sex with two 17 year olds. It was therefore possible, in the absence of any other explanation, to infer that he had been discriminated against because of his sexual orientation.
Take note: Aplin serves as a reminder that full evidence should be made available to the person being investigated and also the role of an investigatory officer should have proper boundaries. It's also worth noting that a finding of unconscious bias can arise out of unreasonable behaviour which cannot be explained by non-discriminatory factors.
This article is taken from HR Law - April 2019.
