Adverse Treatment Amounting to Sexual Orientation Discrimination and Constructive Dismissal
Monday 1st April 2019
In Tywyn Primary School v Aplin the EAT held that that the treatment of a Head Teacher by his school was constructive dismissal and sexual orientation discrimination.
The Equality Act 2010 provides that sexual orientation is a protected characteristic and makes it unlawful to discriminate against someone due to their sexual orientation.
In order to establish that an employee has been constructively dismissed three key elements must be proved; i) an actual or anticipatory fundamental or repudiatory breach of contract ii) the employee must resign in response to the breach iii) the employee must not delay for too long in resigning.
Mr Aplin was an openly gay 42 year old primary school Head Teacher. He met two 17 year old males on Grindr and the three of them had sex. The Local Authority set up a Professional Abuse Strategy Meeting which concluded that no criminal offence had been committed and no child protection issue arose. Despite this the school brought disciplinary proceedings. After being dismissed by the school and appealing the decision Mr Aplin resigned on the basis that a series of procedural errors in dealing with the appeal amounted to a breach of the implied term of trust and confidence.
Mr Aplin brought claims to the Employment Tribunal claiming unfair dismissal and sexual orientation discrimination. In the first Instance the Employment Tribunal held that Mr Aplin had affirmed the contract by bringing his appeal but that the continuing procedural errors entitled him to resign and that his claim of unfair constructive dismissal therefore succeeded.
Regarding the discrimination claim, it held that the claim was proven in relation to the investigating officer, but not in relation to the other parties involved, including the Local Authority lawyer and the Governors of the School.
The School appealed against the decision, Mr Aplin also cross-appealed against the finding that the other parties involved had not been discriminatory.
Decision and comment
The EAT dismissed the school’s appeal, upholding the ET’s decision that that Mr Aplin had been constructively dismissed and discriminated against. The EAT also ordered that a decision as to whether the school Governors had discriminated against Mr Aplin be remitted back to the first instance tribunal for decision.
This case reinforces the need for investigating officers to be factual and objective during their investigations and for proper procedure to be followed during disciplinary proceedings.