This week we are looking at sexual orientation discrimination and constructive dismissal. Those of you with good memories may remember we recently covered a race discrimination case that focused on the burden of proof for discrimination claims. In short, if the employee can establish a prima-facie case of discrimination, the burden of proof shifts onto the employer to prove that it was for a non-discriminatory reason. If they are unable to do so, the claim may succeed.
The questions this week are:
Can an adverse disciplinary procedure and delayed dismissal appeal amount to constructive dismissal and sexual orientation discrimination?
If a dismissing officer allows another party to make a decision for them by proxy, are they liable for any discrimination that arises from that decision?
Mr Aplin, the Claimant, was a Head Teacher at Tywyn Primary School, the Respondent. The Claimant was a 42-year-old, gay male and the Respondent was aware of this. The Claimant met two young males on Grindr – a gay dating site that requires users to be over 18 – and subsequently had a threesome with them.
Despite believing that both of the men were over 18, it subsequently transpired they were 17. A police investigation followed and the matter was also referred to the Respondent’s social services department and a professional abuse investigation meeting was held at the Council.
The police investigation did not result in any charge and the professional abuse investigation found no offence had been committed and no child protection issue had arisen. However, it did recommend the Respondent consider taking disciplinary action against the Claimant.
The Respondent investigated the matter and, despite the police and professional abuse reports finding to the contrary, the investigating officer determined that the Claimant posed a safeguarding risk. A disciplinary hearing was held and the Claimant was dismissed for gross misconduct.
The disciplinary hearing was riddled with errors, including:
- The investigating officer not remaining impartial and purporting several value judgments on the Claimant’s character
- The investigating officer making conclusions contrary to the police and professional abuse reports
- The Claimant not being given copies of crucial material, including the police and professional abuse reports, before the disciplinary hearing
- Delay in holding the disciplinary hearing
- The Respondent having a barrister make legal representations and the Claimant not being informed of his right to bring a legal advisor until much later
- The Respondent’s legal advisor retiring with the disciplinary panel and making the decision to dismiss for the panel (comprised of the school’s Governors)
The Claimant appealed his dismissal citing the unfair process being tainted by homophobic attitudes of the investigating officer. There was some discrepancy as to whether his contract could be terminated until after the appeal had ended, or, whether his appeal reactivated the contract. However, the Claimant resigned after appealing citing issues with the process.
The Claimant brought claims for constructive dismissal and sexual-orientation discrimination. He argued that the investigation and decision to dismiss were tainted by his sexual-orientation given the adverse findings in the disciplinary investigation compared to the police reports.
The ET allowed the constructive dismissal claim. It held the Claimant’s contract was still in force at the time of his appeal and the Respondent had breached that contract due to their handling of the disciplinary and appeal process.
The ET also allowed the discrimination claim. The Claimant’s treatment reversed the burden of proof for the Respondent to prove the treatment by the investigating officer was not discriminatory. This could not be satisfactorily explained.
The Respondent appealed the decision and the appeal was rejected by the EAT. The Claimant also appealed the discrimination claim, stating it should have extended to the Governors’ deferring their decision to the Respondent’s legal advisor.
The EAT allowed the Claimant’s appeal. As the Governors had read the investigation report and decided not to adjourn the disciplinary to allow the Claimant to access the police report, their failure to adjourn the hearing and allow the Respondent’s legal advisor to make the decision by proxy might have reversed the burden of proof for a discrimination claim. The case was remitted back to ET to determine this point.
The takeaway point:
To answer today’s questions, yes, a procedurally flawed disciplinary investigation can amount to both constructive dismissal and discrimination. Unusually in this case, the employee appealing the decision kept the contract active meaning he could resign after he was dismissed. This will not be the case for every case. A few employers re-instate the employee when an appeal is lodged, and then either confirm or reject the dismissal when the appeal is determined.
Additionally, deferring the decision to dismiss to someone else will not necessarily remove any liability from the dismissing officer. The case is yet to be heard on this point but unless the employer can provide a satisfactory explanation this, the claim may well succeed.
Finally, the employer in this case might have had a potentially fair reason to dismiss. Primary schools pride themselves on reputation, having a head teacher who engaged in threesome with two persons aged just below 18 may not be illegal, but is still sordid and may have caused gossip on the playground.
If the employer had focussed its investigation and dismissal on any damage to the school’s reputation instead of the clearly unfounded allegation of safeguarding, they might have been able to fairly dismiss the Claimant for some other substantial reason. As threesomes with 17 year olds of any sexual orientation will likely cause reputational damage, the decision would not have been tainted by discrimination. However in order to make such a dismissal stick there would have needed to be some evidence of wider public knowledge of the incident.