An employer’s unreasonable behaviour can lead to discrimination found the employment tribunal in the case of Tywyn Primary School vs Aplin.
It was heard that Mr. Aplin, a 42-year-old gay head teacher, indulged in consensual sex with two 17-year-old males who he met online on a gay dating website. Following an investigation by the local authorities which found that there was neither a criminal offence committed nor was there a child protection issue. However, the school pursued a disciplinary action against Mr. Aplin.
The report compiled by an employee from local authority was found to be extremely biased by the tribunal. Instead of being objective and factual the report was full of value judgements and conclusions which were extremely hostile to Mr. Aplin. The report also confirmed that Mr. Aplin was denied access despite repeated requests. The school then had a subsequent hearing and decided to dismiss Mr. Aplin.
Mr. Aplin appealed against the decision and in accordance with his contract terms his employment was supposed to be continued. There were however unnecessary procedural issues and unreasonable delays. Eventually Mr. Aplin decided to resign from the job and claimed for a direct sexual discrimination and constructive dismissal. He also claimed that the entire investigation as well as dismissal were biased due to his sexual orientation.
The tribunal agreed to the constructive dismissal claim and held Mr. Aplin’s contract to remain in force at the time of appeal which implied that the school had breached the contract while handling the appeal process. The tribunal also allowed the discrimination claim but the school appealed.
The appeal was dismissed.
Regarding constructive dismissal, the EAT held that an appeal against a disciplinary decision did not mean that Mr. Aplin affirmed to his contract. Instead, he was rather giving his employer a fair chance to remedy the breach of contract in the original hearing. The continuous mishandling of the investigation procedure was what led Mr. Aplin to resign and claim for a constructive dismissal.
The tribunal also concluded, in relation to the sexual orientation discrimination, the burden of proof must have been reversed so that school could establish that they have not discriminated. This is quite correctly said as:
- The entire case was very closely connected to sexual orientation of Mr. Aplin.
- The mishandling of the procedures clearly drew attention to the fact that there was a lot more to the case that simply the fact that Mr. Aplin participated in lawful sex with 17 year olds. In the absence of any other viable explanation. It is fair to infer that he was discriminated on the basis of his sexual orientation.
Considerations for employers and employees
- It is important to ensure that anyone who is investigating any workplace issue conducts the investigation impartially.
- In case of unfavourable treatment, due to a protected characteristic, the employer must prove that the treatment was not biased.
- Employees must be fully informed and make sure they attend disciplinary proceedings and provide all relevant evidence available.
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Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.