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Sexual Orientation Discrimination

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Was adverse treatment of a gay Head Teacher a constructive dismissal and sexual orientation discrimination?

Yes, held the EAT in Tywyn Primary School v Aplin.

Mr Maplin was an openly gay primary school Head Teacher. 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.

But the School brought disciplinary proceedings and dismissed him. There were procedural errors amounting to a breach of the implied term of trust and confidence. Mr Maplin appealed against the dismissal (which meant his contract continued), but there were further procedural errors in the process. Before the appeal hearing, he resigned, claiming constructive dismissal. He then claimed unfair dismissal and sexual orientation discrimination.

The employment tribunal found he had affirmed his 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 tribunal found that the way he had been treated 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. Adequate explanations, it said, were provided in relation to the other parties involved, including the School Governors.

The School's appeal was dismissed by the EAT. On the constructive dismissal point, the tribunal was wrong to find that bringing the appeal gave rise to affirmation. Instead, the employee was giving his employer an opportunity to remedy the breaches. On the discrimination point, there were sufficient facts from which an inference of discrimination could be drawn and the reverse onus was justified. The investigating officer had not given an adequate alternative explanation for his conduct and the finding of discrimination was accordingly upheld.

Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.