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Gay Headteacher Discriminated Against over Dating App Threesome

on Friday, 12 April 2019.

The Employment Appeal Tribunal has ruled that a Headteacher was subjected to sexual orientation discrimination and constructively dismissed following an inadequate investigation and procedural errors in the school's disciplinary process.

What can you learn from this case?

Tywyn Primary School v Aplin

Mr Aplin was a primary school Headteacher. He was 42 years old and had been a teacher for 19 years (6 of which as a deputy head). He was openly gay and this was something known to the school's governors. He met two 17 year old males on 'Grindr' (a social networking app for gay, bi, trans and queer people) and, after two meetings, the three of them engaged in sexual intercourse.

This came to the attention of the police and social services. A Professional Abuse Strategy Meeting was arranged by the Local Authority, attended by the school's chair of governors and after the meeting the school suspended Mr Aplin.

At a further Strategy Meeting it was concluded that no child protection issues or criminal offences had been committed. A recommendation was however made that the school consider disciplinary action.

Notwithstanding the conclusions made at the second Strategy Meeting, the investigating officer approached the matter on the basis that Mr Aplin posed a danger to children. The matter was referred to a disciplinary panel on this basis and Mr Aplin was dismissed.

Mr Aplin appealed his dismissal, meaning that his employment continued. However before the appeal hearing, he resigned and claimed constructive unfair dismissal. He also claimed sexual orientation discrimination, arguing that the reason for both his dismissal and various issues with the disciplinary process had been that fact that he was gay.

The Appeal

The Employment Appeal Tribunal (EAT) upheld Mr Aplin's claims for constructive unfair dismissal and sexual orientation discrimination.

  • Constructive Unfair Dismissal
    The EAT found that there were procedural failings in the investigative, hearing and appeal stages of the disciplinary process. These included approaching the matter on the basis that Mr Aplin was a risk to children, failing to provide him with Strategy Meeting minutes or police material referenced in the investigation report, and delaying the appeal hearing without consultation with him.

    These procedural failings amounted to a breach of the implied term of mutual trust and confidence and entitled Mr Aplin to resign and claim for constructive unfair dismissal.

  • Sexual Orientation Discrimination
    The EAT held that the serious failings in the school's treatment of Mr Aplin were underpinned by his sexuality and that the investigating officer's approach had been biased and irrational.

    The EAT also held that various decisions of the School's governors including referring the matter to a disciplinary panel on the basis that Mr Aplin posed a risk to children and failing to adjourn the disciplinary hearing to allow him access to relevant documents should be subject to further scrutiny from a sexual orientation discrimination perspective.

Best Practice

This case highlights the significant risks posed by unconscious bias. Internal processes should always be as objective as possible. In this case officers involved in the disciplinary process were criticised for allowing their decisions to be impacted by their biases.

When approaching an internal process it will always be sensible for those involved to scrutinise their objectivity. Where a risk of unconscious bias may exist, employers may find it helpful to appoint external investigators to underpin the objectivity of the process.

Narrow Quay HR can undertake investigations for you. Please get in touch if you need HR support.

For specialist legal advice on discrimination, please contact Nick Murrell in our Employment team on 0117 314 5627.

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