29 March 2019 #Employment
Tywyn Primary School v Aplin concerned a gay primary school Head Teacher who had sexual relations with two 17-year-old males he had met on Grindr. While the Local Authority concluded that no criminal offence had been committed and no child protection issue arose, the School brought disciplinary proceedings and dismissed him.
There were serious procedural errors during the school’s disciplinary and appeal process. Mr Aplin brought claims including sexual orientation discrimination.
The tribunal found that the failings in the process were substantial and wide-ranging enough to infer that a hypothetical heterosexual comparator who had met and had sexual relations with two 17-year-old females would not have been treated the same way.
In discrimination claims, once the claimant has established facts from which discrimination could be inferred, the onus is on the employer to demonstrate that its actions were non-discriminatory. In this case, the tribunal found that the investigating officer had adopted a biased and irrational approach towards the claimant which he could not explain. The tribunal (with which the EAT later agreed) found that there had been sexual orientation discrimination.
This case clearly demonstrates the risks of employers not having adequate and legitimate reasons to support their actions. Employers also often encounter hurdles in tribunal with proving their reasoning. Contemporaneous notes are often extremely important in this regard (albeit they would not have assisted in this case!)