Introduction

The appeal concerned the ET’s finding that a headteacher of a school was entitled to resign and claim constructive dismissal and sexual orientation discrimination, largely based on the conduct of those investigating and deciding on his disciplinary proceedings. The EAT approved the ET’s findings that the failings in procedure were so unreasonable that it was possible to infer there must have been much more to the failings than simply the allegations under investigation, specifically that discrimination can be inferred.

Facts

Mr M Aplin (MA) was appointed as headteacher by the Governing Body of Tywyn Primary School (the school) from September 1, 2015. MA had previously acted as a deputy head and acting headteacher for the school. MA was openly gay and the school governors were fully aware of his sexual orientation.

In August 2015 MA met two 17-year-old men through the ‘Grindr’ app and they had sex. MA reasonably believed them to be over 18. The matter came to the attention of the Police and Local Authority’s Social Services Department. A Professional Abuse Strategy Meeting (PASM) was arranged for August 28, 2015, attended by Mr Latham, the chairman of the school’s governors. On September 1, 2015 MA was suspended from duties. A further PASM determined that no criminal offence had occurred and no child protection issues arose. However, the PASM recommended the school consider disciplinary action. The disciplinary proceedings terms of reference were formulated by Mr Hodges (H) (local government lawyer) for Mr Gordon (G) (who worked for the local authority); G was appointed to investigate.

G’s investigation report was discussed by Mr Latham and fellow governor Mr Crowley who decided the matter should proceed to a disciplinary hearing which eventually took place on May 17, 2016. MA had still not been provided with the PASM minutes or police material. G presented the case for the school. MA stated that what he had done had been lawful and part of his private life and that G’s report was biased and homophobic.

The disciplinary panel, assisted by H and Ms Holt (HR Manager), found that MA had failed to recognise the impact of his conduct on his role as headteacher and on the reputation of the school. The panel called his judgment into question and considered that its trust and confidence in him as headteacher had been undermined making his position untenable. The school moved to terminate MA’s employment with immediate effect but his contractual right of appeal had the effect of halting the dismissal pending the outcome of any appeal.

MA appealed the decision on May 25, 2016 on numerous grounds, including bias and unfairness in the report, failure to disclose documents, the hearing being driven by homophobic beliefs and the decision wrongly involving child protection issues. H decided the appeal should take the form of a complete re-hearing. After significant delays, on August 27, 2016 MA resigned. He complained of an inept and unfair investigation which had influenced the disciplinary panel.

Employment Tribunal

MA brought claims for unfair constructive dismissal and sexual orientation discrimination. The ET found that the unsatisfactory investigation report and other failings in the disciplinary procedure involved breaches of the implied term. Although it held that MA had affirmed the contract by appealing, the ET found further breaches in the way the appeal was handled which entitled him to resign and claim constructive unfair dismissal.

MA claimed the entire disciplinary process, including the appeal and the decisions reached, were influenced by his sexual orientation and therefore amounted to direct discrimination.

The ET found that the way MA had been treated overall gave rise to a prima facie case of discrimination giving rise to the reversal of the burden of proof. It considered the positions of G, H, other local authority officers and the school governors separately.

The ET found that the investigating officer, G, had subjected MA to sexual orientation discrimination and thus the claim against the school’s governing body, which was vicariously liable for G, was well-founded. However, the ET found that adequate explanations were provided in relation to H, other local authority officers and the school governors.

The ET heavily criticised G’s investigation report for approaching the case on the basis that MA was a potential danger to children, for drawing selectively on PASM minutes and police material which had not been made available to MA, and for failing as required by guidance to produce a report which was factual and objective. G’s report was laden with value judgments and conclusions hostile to MA. The ET found that both Mr Latham and G based their approach to the case on a premise that MA presented a child protection problem, which was inconsistent with the PASM conclusions or the terms of reference.

The ET was highly critical of the fact that MA had not being provided with the PASM minutes or police material. It was also critical of G for having presented the school’s case at the hearing and H inappropriately retiring with the panel. The tribunal found H responsible for the decisions ‘… at least in terms of detailed reasoning as set out in the outcome letter’. H accepted at the disciplinary hearing that G’s report was not objective and told the panel to ignore the parts which lacked objectivity. However, at the ET hearing, a panel member was unable to distinguish between the objective and subjective parts of G’s report.

Employment Appeal Tribunal

The school appealed the ET’s findings in relation to unfair constructive dismissal and discrimination. The EAT held that the bringing of the disciplinary appeal did not amount to an affirmation of the earlier breaches. Instead, it amounted to MA giving the school an opportunity to remedy its breaches, which it did not do. The EAT found there had been a constructive dismissal and the appeal failed.

The school appealed the discrimination finding on the basis that either the wrong legal test had been applied or there was no evidence to justify the finding. The EAT conceded that the ET judgment should have been better expressed, but that the decision on what basis the ET considered the burden of proof had shifted was sufficiently clear. Namely, MA’s sexual orientation was at the centre of the case and the procedural failings were so unreasonable that it was possible to infer discrimination. Therefore the EAT rejected the school’s appeal on discrimination.

MA cross-appealed the ET’s findings that H, other local authority officers and the school’s governors did not discriminate against him. The EAT found the ET’s findings that there were non-discriminatory explanations for H’s conduct were legally sound. The EAT found that there was no basis upon which to assert that the other local authority officers had discriminated against MA.

Lastly, the EAT found that with respect to the school governors, the ET should have considered why they had abdicated their role as decision-makers to the local authority officers and H, and whether the burden was discharged in respect of the governors given this fact. The ET did not properly scrutinise the position of the governors or take into account all the relevant evidence or give sufficient reasons as to why the ET found they had discharged the burden. Therefore the EAT allowed MA’s cross-appeal insofar as it related to the governors. The EAT dismissed the school’s appeal in its entirety and remitted the case back to the same ET to consider the issue of discrimination in respect of the governors.

Implications for practitioners

This case confirms that an ET can draw inferences of discrimination where the failings in procedure are so unreasonable that it is possible to infer there must have been much more to the failings than simply the allegations under investigation. Panels and decisionmakers should not abdicate their roles to others as to do so could open them to implications of discriminatory motives.

This article was first published in the Discrimination Law Association Briefing 897-908