Employment Appeal Tribunal decision on Sexual Orientation Discrimination
The authority of ‘The Governing Body of Tywyn Primary School -v- Mr M Aplin UKEAT/0298/17/LA demonstrates that sexual orientation discrimination is still unfortunately an issue in 2019.
The facts
The Claimant Mr Aplin was a 42-year-old primary school Head Teacher. He was openly gay and met two 17-year-old males on ‘Grindr’ which is a dating app for gay men. After two meetings the three of them had sex.
This came to the attention of the police and then the Local Authority’s Professional Abuse Strategy team which concluded that no criminal offence had been committed and that no child protection issues arose.
Notwithstanding this, the school implemented disciplinary proceedings which resulted in Mr Aplin’s summary dismissal. They found that ‘his conduct, although not a breach of the criminal law, his perception of it and his inability to recognise any impact upon his role as Head Teacher and the reputation of the school and himself as its figurehead, so call into question his judgment as to undermine the necessary trust and confidence in him and make it untenable for him to continue as headteacher.’
Mr Aplin appealed the decision on the basis there were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the subsequent disciplinary hearing. Various documents, for example minutes and police material that were relied on as part of the investigation were not supplied to Mr Aplin.
It is worth noting that by appealing, it kept Mr Aplin’s contract alive, however there were further procedural errors with the appeal process which led him to resign claiming constructive dismissal in addition to sexual orientation discrimination.
The Employment Tribunal decision
At first instance the Employment Tribunal after a five-day hearing, found that Mr Aplin had affirmed his employment contract by bringing his appeal and that his claim of constructive dismissal succeeded. The Employment Tribunal also found that the way that he had been treated overall gave rise to a reverse burden of proof and that in relation to the investigating officer, that burden had not been satisfied and that he had been discriminated against by the investigating officer because he was gay.
The School appealed against the decision.
The Employment Appeal Tribunal decision
The Employment Appeal Tribunal dismissed the school’s appeal for two reasons:-
- In relation to constructive dismissal it held that the Employment Tribunal was wrong to find that in bringing the appeal it gave rise to affirmation of Mr Aplin’s employment contract. It held that instead he was giving his employer the opportunity to remedy the procedural defects and breaches.
- On the sexual orientation discrimination claim, the Employment Appeal Tribunal held that there were sufficient facts from which an inference of sexual orientation discrimination could be drawn, and the reverse burden of proof was justified. It found that the investigating officer had not given an adequate alternative explanation for his conduct which was viewed as discriminatory on the basis of Mr Aplin’s sexual orientation.
If you have any concerns about LBGTQ+ discrimination in the workplace or if as an employer you would like to update any anti-discrimination policies and procedures then contact Steven Eckett, Partner and Head of Employment on 020 7703 5034 or by e-mail seckett@meaby.co.uk
