Employment Law Case Update: Aplin v The Governing Body of Tywyn Primary

It is often said that your private life should not mix with your professional life. It can be difficult as the two so often run a very close parallel, but it can become a source of conflict when the two worlds collide. This is evident in the case of Aplin v The Governing Body of Tywyn Primary.

Mr Aplin was appointed Head Teacher of Tywyn Primary School (the School) from 1 September 2015. He had been Deputy Head since 2009 and a teacher for 19 years. Mr Aplin was openly gay and the governors of the School were fully aware.

In August of 2015, Mr Aplin used the dating app Grinder to meet and have sexual relations with two 17-year-old boys. The matter received the attention of the police and the Local Authority Social Services Department, after which a Professional Abuse Strategy Meeting (PASM) was arranged. It was found that no criminal offence had been committed but the PASM did recommend that the School consider disciplinary action against Mr Aplin.

An investigating officer was appointed to produce a report in to the conduct of Mr Aplin. The report led to a disciplinary hearing which found that although there had been no breach of criminal law, Mr Aplin had failed to recognise any impact on his role as Head Teacher, the reputation of the school and Mr Aplin himself as its figurehead. The disciplinary panel felt that the incident called into question his judgement and the necessary trust and confidence in him, and this made it untenable for him to continue as Head Teacher.

He was dismissed with immediate effect; however it was found that Mr Aplin’s contract could not be terminated until after he had an opportunity to appeal, meaning he should not have been dismissed with immediate effect.

Mr Aplin appealed the dismissal and it appears that the parties proceeded on the basis that the appeal resurrected Mr Aplin’s contract. The School decided to proceed on the basis that the appeal should be a full re-hearing. Mr Aplin was unhappy with how the process had been carried out and resigned, claiming constructive dismissal and discrimination on the grounds of sexual orientation.

The Employment Tribunal (ET) found in Mr Aplin’s favour in his claims. The School appealed the constructive dismissal claim on the basis that the decision by Mr Aplin to appeal the dismissal had armed the breach by the School and so Mr Aplin could not bring a constructive dismissal claim. The Employment Appeal Tribunal (EAT) found that this was not the case, ruling that appealing a disciplinary decision does not amount to arming the breach but is in fact providing an opportunity for the breach to be remedied.

In relation to the discrimination claim, the School appealed on the basis that the ET was incorrect to find that the burden of proof had shied to the School to show that they had not discriminated against Mr Aplin. The EAT dismissed the School’s appeal, finding that there were two main reasons why the burden of proof had been reversed. First, that the whole case was linked to Mr Aplin’s sexual orientation. Second, the School’s procedural failures were so serious that the inference could be drawn that there was more to the unfavourable treatment received by Mr Aplin than the fact he had lawful sex with two 17-year-olds. As such it would be possible to infer, in the absence of any other explanation, Mr Aplin had been discriminated against on the grounds of his sexual orientation.

In terms of discrimination the case shows that the burden of proof in discrimination claims can be reversed. The ET may reverse the burden where an employer acts unreasonably, the employee’s protected characteristic is at the centre of the claim and there are no non-discriminatory factors to explain the unreasonable behaviour.

There were also substantial procedural failures during the disciplinary process, such as withholding evidence.

This case is a useful reminder that an employee needs to be kept informed during any disciplinary process and have access to evidence that is being used against them. It is important that the role of the investigating officer is clear and unbiased with the investigating officer there to determine fact and not provide opinion. If you are looking for advice on how to carry out fair disciplinary procedures, you can find out more about our bespoke Employment Law Training by contacting Natalie Rawson on 023 8071 7717 or email natalierawson@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.