Do irregularities in a disciplinary process amount to a breach of the implied duty of trust?
The Employment Appeal Tribunal (EAT) has considered in the case of Tywyn Primary School v Aplin whether irregularities in a disciplinary process amounted to a breach of the implied duty of trust and confidence and discrimination.
Internal disciplinary proceedings
Mr Aplin is gay and was a Head Teacher at Tywyn Primary School. The school was aware of Mr Aplin’s sexual orientation at the time they appointed him to the role.
In August 2015, Mr Aplin met with two 17 year old men, through the app ‘Grindr’, and had sex with them. The Local Authority set up a Professional Abuse Strategy Meeting which concluded that no criminal offence had been committed and there was no child protection issue. However, the school instigated its own internal disciplinary proceedings and Mr Aplin was suspended pending the outcome of the investigation.
Mr Aplin was dismissed and Mr Aplin appealed that decision.
The appeal had the effect of preserving Mr Aplin’s contract of employment whilst the appeal was ongoing but he decided to resign prior to the appeal hearing.
Constructive dismissal and discrimination
Mr Aplin issued claims for constructive dismissal and discrimination because of his sexual orientation.
The Employment Tribunal held that there had been procedural errors with the disciplinary process, in particular at the investigation stage. The Employment Tribunal was critical of the investigation that was conducted and the report that was produced.
The Employment Tribunal upheld the claims of constructive unfair dismissal and discrimination because of Mr Aplin’s sexual orientation.
Employment Appeal Tribunal
The EAT decided that the appeal against his dismissal was not a reaffirmation of his contract of employment but rather a clear objection to the way in which the school had acted and his claim for constructive unfair dismissal was successful.
It was also found that the way in which Mr Aplin had been treated during the investigation process gave rise to an inference that it was because of his sexuality and that the School had not presented sufficient evidence or explanation to demonstrate that this was not the case. The claim for discrimination on the grounds of sexual orientation was, therefore, successful.
A reminder to all employers
This case is a reminder to all employers that regardless of any recommendations made by external agencies, there is still a requirement on them to carry out a reasonable, fair and balanced investigation and disciplinary procedure before deciding to dismiss an employee.
It is particularly important that those managers that are tasked with conducting a disciplinary investigation which involve allegations of discrimination have received equal opportunities training and have had experience in conducting investigations.
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