The importance of ensuring investigations are free from bias
2nd December, 2019
In Aplin v Tywyn Primary School, Mr Aplin was awarded £696,255.65 in a sexual orientation discrimination claim, as it was found that a heterosexual person would have been treated differently in the same circumstances.
Background
In 2009, Mr Aplin started working as the Deputy Head teacher at Tywyn Primary School. He was appointed as Head Teacher with effect from 1 September 2015. Mr Aplin was openly gay and the governors of the school were aware of this.
In August 2015, Mr Aplin met two young men through an app called Grindr and the three of them had sex. It later became apparent that the two young men were 17 years old. Mr Aplin was unaware of this, as the app requires members to certify that they are over 18 years old.
The Police and Local Authority’s Social Services department became involved over concerns of the two individuals’ ability to consent to sexual activity. It was later concluded that no criminal offence had been committed and there were no child protection issues to consider; however, a Professional Abuse Strategy Meeting (PASM) advised Tywyn Primary School to consider disciplinary action. Tywyn Primary School commenced disciplinary proceedings on the basis that Mr Aplin’s actions amounted to gross misconduct and that he had brought the school into disrepute and impacted their trust and confidence in him to undertake his role.
During the course of the investigation and disciplinary process, there were a number of procedural errors and bias in the decision making, which “amounted to a breach of the implied terms of trust and confidence”. Mr Aplin was dismissed by the School Governors. He appeal their decision. Further inconsistencies arose during the appeal process and Mr Aplin eventually resigned, prior to the hearing, claiming constructive dismissal.
Employment Tribunal (ET)
Mr Aplin brought a claim of unfair dismissal and sexual orientation discrimination. The ET held that the procedural errors entitled Mr Aplin to resign from his role and claim unfair constructive dismissal. Further, that Mr Aplin had been subjected to sexual orientation discrimination and that in the circumstances there were sufficient facts from which an inference of discrimination could be drawn and therefore the burden of proof, i.e. the need to demonstrate that their actions were not discriminatory, had shifted to Tywyn Primary School. The School Governors were able to adequately explain their actions but the investigating officer failed to provide an explanation for his potentially discriminatory conduct. For example, he was unable to adequately explain why he had selectively drawn on PASM minutes and material provided by the police, which Mr Aplin had not had sight of. As such, it was inferred that the treatment was as a result of Mr Aplin’s sexual orientation.
Employment Appeal Tribunal
Tywyn Primary School appealed this decision on the grounds that the procedural errors did not amount to a breach of trust and confidence and, in relation to the discrimination claim, that the ET had erred in finding that the burden of proof had switched to them. The School’s appeal was unsuccessful. The Employment Appeal Tribunal held that the ET had not erred when considering the discrimination issue and that “the reverse onus was justified”.
Mr Aplin also cross-appealed, arguing that the actions of the School Governors were discriminatory. The issue was remitted back to the ET for further consideration.
The disciplinary panel and School Governors had “handed the administrative responsibility to ensure a fair process and relied entirely on the LEA [Local Education Agency] officers to administer a fair process”. They were therefore entirely reliant on the LEA advisers, as they were inexperienced in disciplinary matters and relied upon the “experts”. The ET found that this was in no way related to Mr Aplin’s sexual orientation as they would “equally have abdicated responsibility” in comparator cases.
Remedy
The ET concluded that Mr Aplin should be compensated for all losses resulting from his dismissal but that a percentage should be deducted for his contributory fault. He was still awarded £696,255.65 in compensation.
Comments
This case highlights the importance of avoiding procedural errors and ensuring that investigations remain objective and free from bias (even potentially unconscious bias).
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.