In the recent case of Alpin v The Governing Body of Tywyn Primary School, the Employment Tribunal considered whether a gay Head Teacher was entitled to resign in response to a flawed disciplinary process involving investigations into his sex life.
Mr Alpin was a 42 year old primary school Head Teacher who was openly gay. He met two 17 year old males on a dating app, Grindr and the three of them had sex.
A local authority investigation took place and concluded that no criminal offence had been committed and there were not any child protection issues.
Following the local authority’s investigation and findings, the School brought disciplinary proceedings against Mr Alpin. They considered whether Mr Alpin’s conduct had (1) brought the reputation of the School into disrepute, (2) whether his conduct outside work had undermined his ability to fulfil his role and (3) whether it displayed a gross error of judgement such as to undermine the School’s confidence in him.
The disciplinary investigation was conducted by Mr Gordon. The role of an investigator is to fact find but Mr Gordon was not objective and took the attitude that child protection issues were involved even though the local authority had concluded that this was not the case. He also overstepped his role by advising the disciplinary panel members, who were the school governors, despite a local authority lawyer been present to advise. Mr Gordon drew attention to papers connected to the disciplinary investigation that Mr Alpin had not had sight of.
Mr Alpin was dismissed and he appealed. During the course of the appeal, Mr Alpin was again not provided with all the evidence that the disciplinary panel had based its decision to dismiss on. In addition, he was told at short notice that the School would be instructing a barrister and that he too could have legal representation. Mr Alpin resigned claiming that the flaws relating to the disciplinary proceedings amounted to constructive dismissal.
Mr Alpin brought claims of constructive dismissal and sexual orientation discrimination against the School in the Employment Tribunal.
The Employment Tribunal found that the entire disciplinary process was so flawed that it constituted a breach of trust and confidence but that Mr Alpin had affirmed the employment contract by bringing his appeal. It was also found that the continuing procedural errors in connection with the appeal entitled Mr Alpin to resign and his claim of constructive dismissal therefore succeeded.
In relation to the discrimination claim, it was found that Mr Gordon had displayed a striking lack of objectivity when presenting the evidence and that this displayed unconscious bias. There was sufficient material for an inference of sexual orientation discrimination to be drawn but that the same could not be said for the local authority lawyer and school governors.
The School appealed the decision in relation to the constructive dismissal finding and Mr Alpin appealed in relation to the finding on sexual orientation discrimination.
Employment Appeal Tribunal Decision
The Employment Appeal Tribunal dismissed the School’s appeal upholding the Employment Tribunal’s finding that Mr Alpin had been constructively dismissed. However, it held that the Tribunal had been wrong to find that Mr Aplin had affirmed the employment contract by appealing and that he had been constructively dismissed due to the breaches at the appeal stage. Instead, Mr Alpin had allowed the School an opportunity to remedy the breaches that had occurred during the disciplinary process by submitting an appeal of his dismissal.
Mr Alpin’s appeal in relation to discrimination was allowed in part in that the matter would be returned to the Employment Tribunal to determine whether the school governors were guilty of sexual orientation discrimination.
This case is an important reminder for employers that unreasonable behaviour that is not explained by non-discriminatory factors may well give rise to findings of unconscious bias.
It is also an important reminder of the need to ensure that a fair disciplinary investigation is conducted. In this case, significant criticisms were made regarding the investigation. These included (a) for approaching the case on the basis that Mr Alpin was a potential danger to children (b) for drawing selectively on minutes and police material which were not available to the employee (c) for failing, as required by relevant guidance, to produce a report which was factual and objective, instead producing one that was laden with value judgments and conclusions which were hostile to Mr Alpin.
If you require any advice on grievance procedures, employment tribunals or any other HR related legal issues, get in touch with Farleys’ employment law team on 0845 287 0939 or send your enquiry through our online contact form.
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