In this update, we comment on the case of The Governing Body of Tywyn Primary School v. Aplin and why employers should tread carefully before dismissing employees for their actions outside of the workplace.
The claimant was an openly gay head teacher, who had been deputy head teacher at the same school for 19 years. Through Grindr, an online application, he met two 17 year old males with whom he subsequently had sex. He believed the two individuals to be older than 17. The relevant local authority arranged a "professional abuse strategy meeting." The conclusion was that no criminal offence had been committed and no child protection issue arose.
The claimant's employer brought disciplinary proceedings, and subsequently dismissed him. There were a number of procedural errors, which amounted to a breach of the implied term of trust and confidence. The claimant appealed the decision to dismiss him.
There were subsequently further procedural errors in relation to the claimant's appeal. As a result, the claimant resigned claiming constructive dismissal. He brought proceedings in the employment tribunal for constructive unfair dismissal and sexual orientation discrimination.
Employment Tribunal Decision
The tribunal found that the claimant had affirmed his employment contract by bringing an appeal. However, it considered that the subsequent procedural errors in relation to the appeal entitled him to resign. As such, his constructive unfair dismissal claim succeeded.
In relation to the claimant's sexual orientation discrimination claim, the tribunal found that he had been subjected to sexual orientation discrimination by the investigating officer. The tribunal considered that the investigation report produced by the investigating officer started from the position that the claimant was a danger to children, and drew selectively on the minutes of the ‘professional abuse strategy meeting’ and police material (which was not made available to the claimant).
The tribunal was highly critical of the investigation report, which it concluded was laden with value judgments and conclusions that were hostile to the claimant. It also noted that the investigating officer had been involved in discussions which resulted in the decision to convene a disciplinary hearing, and presented the management case at the hearing. The tribunal found that the investigating officer adopted both a biased and irrational approach to the claimant.
The employer appealed against the finding that the procedural errors in relation to the appeal amounted to a breach of trust and confidence. It also appealed against the finding of sexual orientation discrimination on the basis that the burden of proof should not have been reversed because the claimant had not established a prima facie case.
Employment Appeal Tribunal (EAT) Decision
The employer's appeal was dismissed by the EAT for the following reasons:
- The tribunal was wrong to find that bringing an appeal meant that the employment contract had been affirmed. The claimant was instead making clear his objections, and giving his employer an opportunity to remedy the alleged breaches.
- There were sufficient facts from which an inference of discrimination could be drawn, and the reversal of the burden of proof was justified. The investigating officer had not given an adequate alternative explanation for his conduct. Accordingly, the finding of discrimination by him was upheld.
The claimant's cross-appeal in relation to the conduct of the school's Governors, and alleged discrimination by them, was remitted to the tribunal.
Employers should take a number of key points from this case:
- An investigating officer should be very clear on their role in the disciplinary process, which is to complete a factual and objective investigation free from bias. Any report produced as part of the investigation should follow the Acas investigation guide as appropriate, and should not make recommendations about potential disciplinary sanctions.
- Before any disciplinary hearing, an employee should be provided with copies of all documents that will be referred to at the hearing so that they understand the case against them and can respond accordingly.
- A separate person – not the investigating officer - should be appointed to conduct any disciplinary hearing. Whilst a disciplinary panel was appointed in this particular case, this approach is more common in the public sector and can lead to issues when reaching a decision.
- The investigating officer should have no involvement in the disciplinary decision that is made following any disciplinary hearing.
Separately, members of Human Resource departments should ensure that any advice they give is limited to questions of procedure and process (and does not stray into areas of culpability).