In The Governing Body of Tywyn Primary v. Mr M Aplin UKEAT/0298/17/LA the EAT held that the adverse treatment of a gay head teacher amounted to constructive dismissal and sexual orientation discrimination.

Mr Aplin, an openly gay 42-year-old head teacher of a primary school, had sex with two 17-year-old boys he met on Grindr. This came to the attention of the Police and the Local Authority’s Social Services Department, and a Professional Abuse Strategy Meeting (PASM) was arranged. The PASM found no criminal offence was committed, the boys had full capacity to consent and no child protection issues arose. The PASM, however, did recommend the school consider disciplinary action against Mr Aplin.

An investigating officer was appointed to produce a report considering Mr Aplin’s conduct. This report was heavily criticised by the ET for failing to be factual and objective, and instead being laden with value judgments and conclusions.

The report led to a disciplinary hearing which found that, although Mr Aplin’s conduct was not a breach of the criminal law, his perception of the event and his inability to recognise any impact on his role as head teacher and the reputation of the school called into question his judgement and undermined the necessary trust and confidence in him. Mr Aplin was consequently dismissed. The ET criticised the disciplinary process for a number of reasons, including that Mr Aplin had not been supplied with the notes from the PASM even though they were selectively referred to in the investigation report. Further, Mr Aplin’s contract could not be terminated until after he had had the opportunity to appeal, so he should not have been dismissed with immediate effect.

Mr Aplin appealed against the decision of the disciplinary panel. The parties then appear to have proceeded on the basis that this appeal resurrected Mr Aplin’s contract of employment. The school decided the appeal should take the form of a re-hearing. Mr Aplin was unhappy with the process leading up to the appeal hearing and subsequently resigned, before the appeal hearing, claiming discrimination and constructive dismissal.

Constructive dismissal

There were two main questions for the EAT to decide. The first in relation to constructive dismissal and whether Mr Aplin’s appeal against the outcome of the disciplinary process represented an affirmation of his employment contract. If it did, Mr Aplin would only be able to rely on the breaches by the school after he appealed against the disciplinary hearing outcome and not breaches before that time. The EAT, sensibly, found that appealing against a disciplinary decision did not amount to affirming an employment contract. Instead Mr Aplin was giving his employer an opportunity to remedy the breaches.

Sexual orientation discrimination

At the ET, the tribunal concluded that the burden of proof should be reversed for Mr Aplin’s claim of direct sexual orientation discrimination, so that it was for the school to establish that it had not discriminated.The school appealed against this finding at the EAT, but their appeal was rejected. The EAT found that the ET was right to reverse the burden of proof because (1) the whole case was intimately connected to Mr Aplin’s sexual orientation (2) the procedural failures were so egregious that the inference could be drawn that there was more to it than simply the fact that he had had lawful sex with two 17-year-olds and, on that basis, it would be possible, in the absence of any other explanation, properly to infer that he had been discriminated against because of his sexual orientation.

The key point for the EAT was that the ET did not solely rely on the unreasonable treatment of Mr Aplin but also recognised that his sexual orientation was at the centre of the case. The reverse onus was therefore justified.

Points for employers

This case highlights that, where a tribunal finds an employer has behaved unreasonably, the employee’s protected characteristic is at the centre of the claim and there are no non-discriminatory factors to explain the unreasonable behaviour, then a Tribunal may reverse the burden of proof so that the employer has to establish its innocence, rather than the employee having to prove his or her case.

It is also a useful reminder that employers should keep an employee informed throughout disciplinary proceedings, make all relevant evidence available to them and ensure the role of the investigating officer is clear and unbiased.