The Employment Appeal Tribunal (EAT) has recently handed down its judgment in the case of Tywyn Primary School v Aplin where it found that a school’s dismissal of a Head Teacher and the adverse treatment of him during the disciplinary process amounted to constructive unfair dismissal and discrimination on the grounds of his sexual orientation.
Tywyn Primary School v Aplin
Mr Aplin was an openly gay 42 year old Head Teacher at Tywyn Primary School (the School) with 19 years of teaching experience. The governors of the School were aware of Mr Aplin’s sexual orientation at the time they appointed him to the role. In August 2015, the Head Teacher met with two 17 year old men, through the app “Grindr”, and had sex with them. When this came to the attention of the authorities it was investigated and concluded that no criminal offence had been committed and no child protection issues arose out of this meeting. However, it was recommended that the School considered taking disciplinary action against the Head Teacher who was suspended pending the outcome of the investigation.
Mr Aplin was invited to a disciplinary hearing and accused of gross misconduct on the grounds that his conduct had brought the School into disrepute, impacted upon his ability to undertake his role as Head Techer and demonstrated an error of judgment which undermined the School’s confidence in him. After the disciplinary hearing the decision was made to dismiss and Mr Aplin reacted by appealing that decision. The appeal had the effect of preserving his contract of employment whilst the appeal was ongoing but he decided to resign prior to the appeal hearing and brought claims for constructive dismissal and sexual orientation discrimination.
There had been procedural errors with the disciplinary process, in particular at the investigation stage, before the appeal was submitted which amounted to a breach of mutual trust and confidence. When the case was initially heard by the Employment Tribunal it was found that by appealing the decision to dismiss, Mr Aplin had accepted this breach and reaffirmed his employment. However, he appealed that finding and the EAT decided that the appeal against his dismissal was not a reaffirmation of his contract of employment but rather a clear objection to the way in which the School had acted and his claim for constructive unfair dismissal was successful.
It was also found that the way in which the Head Teacher had been treated during the investigation process gave rise to an inference that the reason for the treatment was because of his sexuality and that the School had not presented sufficient evidence or explanation to demonstrate that this was not the case. The claim for discrimination on the grounds of sexual orientation was, therefore, successful.
This case is a reminder to schools that regardless of any recommendations made by external agencies, there is still a requirement on them to carry out a reasonably fair and balanced investigation and disciplinary procedure before deciding to dismiss a member of staff. We would recommend that senior leaders and/or governors receive training in conducting investigations and disciplinaries, as well as equalities training before being involved in these types of proceedings.