The EAT has recently confirmed in Governing Body of Tywyn Primary School v Aplin that discrimination can be inferred from an employer’s unreasonable behaviour.
In this case, Mr Aplin, an openly gay 42-year-old head teacher, had consensual sex with two 17-year-old boys he met on a gay dating app. The local authority investigated and found that (a) no child protection issues arose and (b) that no criminal offence had been committed. It did however recommend the school consider disciplinary action against Mr Aplin.
A local authority employee produced an investigation report that was later found by the tribunal to be heavily biased, laden with ‘value judgments’ and conclusions which were hostile to Mr Aplin instead of being factual and objective. It also referred to information that Mr Aplin was not given access to despite repeated requests. At the subsequent disciplinary hearing the school decided to summarily dismiss Mr Aplin.
Mr Aplin appealed, which under the terms of his contract meant that his employment continued. However, there were further procedural issues, including unreasonable delays. Mr Aplin eventually resigned, before his appeal was heard, and claimed constructive dismissal and direct sexual orientation discrimination. He argued that the investigation and decision to dismiss were tainted by his sexual-orientation given the adverse findings in the disciplinary investigation compared to the police reports.
The tribunal allowed the constructive dismissal claim. It held Mr Aplin’s contract was still in force at the time of his appeal and the school had breached that contract due to its handling of the disciplinary and appeal process. It also allowed the discrimination claim. Mr Aplin’s treatment reversed the burden of proof for the school to prove the treatment by the investigating officer was not discriminatory. This could not be satisfactorily explained. The school appealed.
The appeal was dismissed.
In relation to the constructive dismissal point, the EAT held that appealing against a disciplinary decision did not amount to Mr Aplin affirming his contract. Rather he was giving his employer a chance to remedy the breaches in the original hearing. The subsequent mishandling of the procedure entitled him to resign and claim constructive dismissal.
In relation to the sexual orientation discrimination, the tribunal had concluded that the burden of proof should be reversed so that it was for the school to establish that it had not discriminated. This was correct said the EAT because:
- the whole case was intimately connected to Mr Aplin’s sexual orientation, and;
- the procedural failures were so egregious that the inference could be drawn that there was more to it than simply the fact that Mr Aplin 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.
Considerations for employers
- Make sure that anyone who is investigating issues such as these does so from an objective standpoint that is not affected by their personal views of the employee concerned.
- Where there has been unfavourable treatment which could be because of protected characteristic, the burden of proof is reversed, and it’ll be for the employer to prove that the treatment was not because of that characteristic. This is a much more onerous position to be in.
- Keep employees fully informed throughout disciplinary proceedings and make all relevant evidence available to them.
- If the employer in this case had focussed its investigation and dismissal on any damage to the school’s reputation instead of the clearly unfounded allegation of safeguarding, then arguably, it might have been able to fairly dismiss Mr Aplin for some other substantial reason.