Alerts

Sexual Orientation Bias

The Employment Appeal Tribunal has determined that failings flowing from a disciplinary investigation were so clear and wide ranging that it was correct to infer that a hypothetical comparator of a heterosexual disposition who had met with two 17 year old females would not have been treated in the same way.

Tywyn Primary School v Aplin 

Mr Aplin was a 42 year old Head Teacher at Tywyn Primary School. He was openly gay. He had met two 17 year olds on Grindr, a dating/social networking app and engaged in sexual activity with them. The app requires users to confirm they are 18 or over and Mr Aplin had no reason to believe otherwise.

The encounter triggered a ‘Professional Abuse Strategy Meeting’ by the Local Authority, as well as a Police investigation. Both investigations concluded that no child protection issues arose and no criminal offence had been committed but the Authority recommended that the school consider disciplinary action.

Mr Aplin was therefore investigated for bringing the school into disrepute, that his course of conduct impacted his ability to undertake the role of Head Teacher and demonstrated so gross an error of judgement as to undermine the school’s confidence in him. The subsequent investigation report focussed on Mr Aplin being a potential danger to children, cherry-picked from the Authority/Policy meeting minutes and included a significant number of value judgements.

At the subsequent disciplinary hearing, Mr Aplin maintained that his actions were lawful and part of his private life. He also described the investigation report as biased and homophobic.  The decision of the disciplinary panel was that his employment should terminate due to a loss of confidence in him.

His contract prevented any dismissal from taking place until he had an opportunity to appeal and he did so; however, he resigned before the Appeal Hearing.

He brought claims for constructive unfair dismissal and discrimination because of his sexual orientation.

The Employment Tribunal found that the investigation report and procedural errors in the disciplinary process entitled Mr Aplin to resign due to the School’s breach of the implied duty of mutual trust and confidence. His claim for discrimination was also upheld as it was determined that Mr Aplin was treated less favourably than a heterosexual colleague would have been treated. This was based on the investigating officer drawing ‘adverse conclusions’ during the investigation process and adopting a ‘biased and irrational approach’ towards Mr Aplin.

The school appealed to the Employment appeal Tribunal.

Decision

The appeal was dismissed in relation to both claims.

The EAT found that Mr Aplin had been discriminated against by the investigating officer, who would not have treated a heterosexual comparator in the same manner.

Comment

This case demonstrates the importance of Employers conducting objective and balanced investigations and not allowing bias to creep into investigations, particularly discriminatory bias.

Investigations are the foundation of a fair dismissal and any investigation report should be factual and objective and not influenced by personal views relating to its subject or the circumstances of the case.

Employers should also be mindful to record their rationale to support their decisions, taking care to ensure that these are both legitimate and well-reasoned.

If you have any queries in relation to employment status or any other HR queries then please do not hesitate to contact the employment team on 01228 552600 or 01524 548494.

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