It has been well publicised of late how important it is for employers to undertake a fair, reasonable and impartial investigation process. The recent case of the Governing Body of Tywyn Primary School v Aplin emphasises this, bringing to light constructive dismissal and possible discrimination during their disciplinary investigation process.
An openly-gay headteacher, Mr Aplin, from Tywyn Primary School met with two 17 year old boys on the social media platform, Grindr, and the three were involved in sexual activity. The local authority conducted a child protection investigation but concluded no criminal offence had occurred.
The school conducted their own disciplinary investigation. During their disciplinary hearing, the investigating officer presented allegations of a safeguarding concern despite it being ruled out by the local authority investigation. They also overstepped the mark by advising the panel of governors, despite the local authority lawyer being there to do this. Among the matters being drawn to the panel’s attention were reference to papers linked to the local authority investigation, which the headteacher had not seen. This was considered to be a breach of trust and confidence.
As a result of this disciplinary investigation, the school dismissed the headteacher. However, Mr Aplin appealed his dismissal.
During the appeal process, Mr Aplin was not given access to all of the evidence which the panel’s decisions were based on. He subsequently resigned and claimed flaws in the disciplinary process had amounted to constructive dismissal.
Furthermore, the headteacher made a claim in the Employment Tribunal (ET) for unfair dismissal and direct sexual orientation discrimination contrary to S.13 of the Equality Act 2010.
The ET agreed that the overall disciplinary process was flawed; this constituted a breach of trust and confidence. They also held that Mr Aplin had been constructively dismissed. The investigating officer was further cast in a bad light due to their lack of objectivity when presenting the case, which fundamentally displayed unconscious bias leading to sexual orientation discrimination.
The panel of governors were also guilty of abdicating their responsibilities as decision makers by allowing other officers, namely the local authority lawyer, to make decisions on their behalf.
The Employment Appeal Tribunal (EAT) dismissed the school’s appeal, upholding the tribunal’s finding that the headteacher had been constructively dismissed. The flaws in the appeal process were sufficient enough to constitute constructive dismissal.
The EAT found that procedural failings in the investigation and disciplinary were evident, and an inference could be drawn that sexual orientation discrimination by the investigating officer had indeed played a part.
However, the EAT felt that the tribunal did not scrutinise enough nor gave sufficient reasoning behind why the governors abdicated their responsibilities. This has therefore been remitted to another employment tribunal to determine whether the governors themselves were guilty of sexual orientation discrimination.
What can employers learn from this case?
As this case on sexual orientation discrimination is being reconsidered, it strongly demonstrates the need for investigating officers to be impartial and for investigations to be centred on the actual facts presented. Any evidence should be shared in a timely manner, with the parties connected to the case given evidence in advance to help nullify any possible trust and confidence issues being raised.
Presenting officers should remain impartial all the way through the process including at disciplinary hearings. Despite its challenges, particularly if a presenting officer is familiar with the employee and their characteristics, extra care must be taken to remain impartial and to avoid any hint of unconscious bias resulting in potential constructive dismissal claims.
Decision makers in a disciplinary hearing must take their roles and responsibilities seriously. If any ambiguity is present, as to their role and jurisdiction, HR advice should be sought in advance.