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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Tywyn Primary School v Aplin [2019] UKEAT 0298_17_2203 (22 March 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0298_17_2203.html Cite as: [2019] UKEAT 0298_17_2203, [2019] UKEAT 298_17_2203 |
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At the Tribunal | |
On 4 March 2019 | |
Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)
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APPELLANT |
RESPONDENT |
For the Appellant | MR CHRISTOPHER HOWELLS (of Counsel) Instructed by: Neath Port Talbot County Borough Council Civic Centre Civic Square Port Talbot Neath Port Talbot SA13 1PJ |
For the Respondent | MR ANDREW SUGARMAN (of Counsel) Instructed via Public Access Scheme |
SUMMARY
UNFAIR DISMISSAL - Constructive dismissal
SEXUAL ORIENTATION DISCRIMINATION
The Claimant was a 42 year old primary school Head Teacher. He was openly gay. He met two 17 year old males on Grindr and the three of them had sex.
The Local Authority set up a Professional Abuse Strategy Meeting which concluded that no criminal offence had been committed and no child protection issue arose. The School nevertheless brought disciplinary proceedings. There were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the disciplinary hearing. The panel of School Governors decided to dismiss the Claimant. He appealed against the decision, which had the legal effect of keeping his contract alive. There were further procedural errors in relation to the appeal and, before the appeal hearing, the Claimant resigned claiming constructive dismissal.
He brought proceedings in the ET claiming unfair dismissal and sexual orientation discrimination.
The ET found that he had affirmed the contract by bringing his appeal but that the continuing procedural errors in connection with the appeal entitled him to resign and that his claim of unfair constructive dismissal therefore succeeded. On the discrimination claim the ET found that the way he had been treated overall gave rise to a reversal of the burden of proof and that, in relation to the investigating officer, that burden was not satisfied and he had been subjected to sexual orientation discrimination, but that adequate explanations were provided in relation to the other parties involved, including the Local Authority lawyer and the Governors of the School.
The School appealed against the finding that the procedural errors in relation to the appeal amounted to a breach of the term of trust and confidence. The Claimant responded by saying that, regardless of the merits of this argument, it was irrelevant because the ET had been wrong to find that the Claimant had affirmed the contract by bringing his internal appeal. The School's appeal was dismissed by the EAT on this basis for two reasons: (a) the ET were wrong to find that bringing the appeal gave rise to affirmation; rather it was a case of an employee giving his employer an opportunity to remedy the breach(es) of the implied term which arose from the investigation and disciplinary hearing and (b) in any event the School had expressly stated at an earlier hearing that they were not taking the affirmation point.
The School also appealed against the finding of discrimination on the basis that the ET were wrong to find that the burden of proof had been reversed. The EAT found that there were sufficient facts from which an inference of discrimination could be drawn and that the reverse onus was justified. The ET had found that the investigating officer had not given an adequate alternative explanation for his conduct and the finding of discrimination by him was accordingly upheld.
The Claimant cross-appealed on discrimination in relation to the Local Authority lawyer and the School Governors, maintaining that the ET had failed to take account of relevant evidence, had reached perverse conclusions and/or had failed to give adequate reasons for finding that there were adequate explanations for their conduct to satisfy the reverse burden of proof. The cross-appeal was allowed only in relation to the Governors; the ET's finding that they had "effectively abandoned their roles" and allowed their decisions to be taken by Local Authority officers "by proxy" was not consistent with other factual findings and in any event the ET should have asked itself why the Governors might have abandoned their roles and allowed their decisions to be taken "by proxy". The question whether the Governors had discriminated against the Claimant was remitted to the same ET.
HIS HONOUR JUDGE SHANKS
Introduction
Facts
"…We find that Mr Aplin's conduct, although not a breach of the criminal law, his perception of it and his inability to recognise any impact upon his role as Headteacher and the reputation of the school and himself as its figurehead, so call into question his judgment as to undermine the necessary trust and confidence in him and make it untenable for him to continue as Headteacher. Our decision is therefore that Mr Aplin's employment as Headteacher should be terminated with immediate effect…."
When the decision was announced Mr Gordon reacted with visible relief. The decision was confirmed in a five-page letter dated 20 May 2016 which contained extensive reasons (see pp 177-181 of EAT bundle); the letter was signed by the Clerk to the Governing Body but was written by Mr Hodges, apparently without reference back to the panel.
Appeal on constructive dismissal
ET's decision on discrimination
"A person (A) discriminates against another (B) if, because of [his sexual orientation], A treats B less favourably than A treats or would treat others."
The ET's conclusions on this part of the claim are at para 40.6 of the Judgment (see pages 27 to 31 of the bundle).
The School's appeal on discrimination
"(1). This section applies to any proceedings relating to a contravention of this Act.
(2). If there are facts from which the [employment tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3). But subsection (2) does not apply if A shows that A did not contravene the provision."
I was also referred to the familiar and extensive case law on the drawing of inferences of discrimination and the proper application of the statutory predecessors of section 136, in particular Igen Ltd v Wong [2005] ICR 931 and the guidance annexed to it.
Mr Aplin's cross-appeal on discrimination
Mr Hodges
Other Local Authority Officers
The Governors
Conclusion and disposal
(1) Although I have criticised the clarity of the ET's reasoning in parts and have allowed the cross-appeal to an extent, this is not a case of a totally flawed decision or anything approaching that;
(2) The issue which needs to be remitted, though it may have great significance for the individuals involved, is a relatively minor one in the context of the case as a whole; indeed, I think Mr Sugarman accepted that, even if he was totally successful on the cross-appeal, the only effect in terms of remedies was likely to be an increase in Mr Aplin's compensation for injury to feelings;
(3) The case relates to events which took place three years ago and it has no doubt involved a great deal of expense on both sides already; a remittal to a fresh Tribunal would be very likely to involve substantially more expense and delay than a remittal to the existing Tribunal;
(4) I have no reason to doubt that the existing ET will be able to address the question of discrimination by the Governors with an open mind on the basis of the evidence they have heard already and such further representations as they see fit in the light of this Judgment, and then to decide the possibly difficult issues which arise on remedies promptly and fairly.
(1) The School's appeal is dismissed;
(2) Mr Aplin's cross-appeal is allowed only in relation to the ET's finding that there was no direct discrimination based on Mr Aplin's sexual orientation by the School Governors but is otherwise dismissed;
(3) The issue whether there was such discrimination is remitted to be re-considered by the same ET;
(4) No further evidence shall be received in relation to that issue but the parties may make further representations in the light of the EAT's Judgment.