Discrimination: Disciplinary proceedings and unconscious bias

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Discrimination: Disciplinary proceedings and unconscious bias

Published 12 April 2019

THE FACTS

Mr Aplin was a headteacher at a primary school. He is openly gay. He met two 17 year old boys on Grindr, an internet dating site, and had sex with them.

A local authority investigation concluded that no criminal offence had been committed and that no child protection issues arose. A disciplinary investigation was commissioned by the school, and an investigating officer, Mr Gordon, was appointed. Following a disciplinary hearing, Mr Aplin was dismissed with immediate effect. Mr Aplin appealed, and his appeal had the effect of keeping his contract alive. However, during the appeal process, he resigned claiming that he had been constructively dismissed.

Mr Aplin brought proceedings in the employment tribunal for constructive dismissal and sexual orientation discrimination.

The employment tribunal heavily criticised the investigation report for three main reasons: a) approaching the case on the basis that Mr Aplin was a potential danger to children; b) drawing selectively on minutes from the local authority’s investigation; and c) failing to produce a report which was factual and objective – the report was laden with value judgements and conclusions which were hostile to Mr Aplin. The employment tribunal also found that the Chairman of the School’s governors and Mr Gordon had based their approach on the premise that Mr Aplin presented a child protection risk. This was not consistent with the local authority’s investigation.

As well as its criticisms of the investigation, the employment tribunal criticised the disciplinary procedure for a number of other reasons. These reasons included the fact that Mr Aplin had not been provided with all the material on which the investigation had been based, that Mr Gordon had presented the case which, according to the relevant policies, he should not have done, and he had done so in a way which was “far from objective”. He had overstepped his role by advising the disciplinary panel. Cumulatively, the employment tribunal found that these errors were sufficient to constitute a breach of trust and confidence.

The employment tribunal also found that there were flaws in the appeal procedure. Mr Aplin was, again, not given access to all the evidence on which the panel had based its decision. He was told that the school would be instructing a barrister and that he too could have legal representation, but he was told this very late in the day.

The employment tribunal held that, Mr Aplin had affirmed the contract after the errors in the original disciplinary procedure by appealing, and he had been constructively dismissed by virtue of the procedural flaws at the appeal stage.

The employment tribunal also held that Mr Gordon’s striking lack of objectivity when presenting the evidence displayed unconscious bias. This was enough for an inference of sexual orientation discrimination to be drawn. However, it did not consider that the same could be said for the local authority lawyer who had advised the panel, or of the governors, in spite of the fact that the governors had abdicated their responsibilities.

The school appealed against the finding that the procedural errors in relation to the appeal amounted to a breach of trust and confidence. This appeal was dismissed by the EAT. The EAT held that the employment tribunal had been wrong to find that Mr Aplin had affirmed his contract by appealing the decision to dismiss. This was a case of an employee giving his employer an opportunity to remedy the breach(es) of the implied term which arose from the investigation and disciplinary hearing.

The school also appealed against the finding of discrimination on the basis that the employment tribunal was wrong to find that the burden of proof had been reversed. The EAT found that there were sufficient facts from which an inference of discrimination could be drawn, and that the reversal of the burden of proof was justified.

Mr Aplin cross appealed the discrimination finding about the local authority lawyer and the governors. The EAT remitted the question of whether the governors had discriminated against Mr Aplin to the employment tribunal to consider.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is a reminder to employers that a flawed disciplinary procedure can increase the risk of successful discrimination claims, not just unfair dismissal claims. Carrying out an objective, fact finding investigation which is then considered by a disciplinary panel who make their own decisions are crucial steps in ensuring inferences of discrimination cannot be drawn from the way the matter is handled.

The Governing Body of Tywyn Primary School v Aplin UKEAT/0298/17

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Key Contacts

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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