The Employment Appeal Tribunal (EAT) has held in The Governing Body of Tywyn Primary School v Aplin that a gay headteacher who resigned after appealing against his dismissal amounted to a constructive dismissal as well as discrimination on the ground of sexual orientation on the part of the investigating officer as well as the school governors.
Mr Aplin, a headteacher who was open gay, made contact with two 17-year old men (A and B) through the “Grindr” app and, after meeting up a couple of times, the three of them had sex together.
The matter then came to the attention of the local authority which held a Professional Abuse Strategy Meeting (PASM). Although it decided that A and B had had full capacity to consent to sex, no criminal offence had been committed and no child protection issue arose, it recommended that the school consider disciplinary action against Mr Aplin. He was subsequently dismissed on the basis that he had brought the school into disrepute.
Mr Aplin appealed arguing that the investigation report was biased and unfair; he had not been given the minutes of the PASM meeting; and police documents had not been disclosed to him. He also alleged that the hearing was driven by homophobic beliefs. However, before the appeal hearing took place, he resigned claiming constructive dismissal.
He brought proceedings in the employment tribunal claiming unfair dismissal and sexual orientation discrimination.
The tribunal held that the investigation report was unsatisfactory in that Mr Aplin was not given copies of the PASM minutes nor material from the police on which the investigating officer, Mr Gordon, had relied for his report. As a result, the implied term of trust and confidence had been breached. Although it also found that Mr Aplin had affirmed the contract by bringing his appeal, the procedural errors at the appeal entitled him to resign and claim constructive dismissal.
With regard to the discrimination claim the tribunal found that the way Mr Aplin had been treated gave rise to a reversal of the burden of proof. As Mr Gordon had not been able to provide an adequate explanation for his behaviour that burden had not been satisfied. Mr Aplin had therefore been subjected to sexual orientation discrimination.
The school appealed against the finding that the procedural errors amounted to a breach of the term of trust and confidence and against the finding of discrimination. Mr Aplin cross-appealed against the finding that the local authority lawyer and the school governor had provided adequate explanations for their conduct.
The EAT dismissed the school’s appeal. With regard to Mr Aplin’s claim of constructive dismissal, it held that he had not affirmed the contract when he appealed against the decision to dismiss him. Rather, his appeal had given the school the chance to remedy the breaches of the implied term which arose from the investigation and disciplinary hearing.
The EAT also found that there were sufficient facts from which the tribunal could draw an inference of discrimination and the decision to reverse the burden of proof was therefore justified. The tribunal had found that the investigating officer had not given an adequate alternative explanation for his conduct and the finding of discrimination by him was accordingly upheld.
With regard to Mr Aplin’s cross-appeal, the EAT held that the tribunal had not properly scrutinised the role of the governors nor taken account of all the relevant evidence for saying that they had discharged the burden of proof in relation to discrimination. Mr Aplin’s cross-appeal was therefore allowed in so far as it related to the governors and the issue was remitted to the tribunal for its consideration.