Different standards?

Photo by Elyssa Fahndrich on Unsplash

An interesting case which caught my attention recently seemed to raise many issues which I have been emphasising to my students who are preparing for their upcoming Discrimination Law exam this month.

The case (The Governing Body of Tywyn Primary School v Aplin Case No 1600635/2016 [2019]) seemed to cover (almost) the whole syllabus of the Discrimination Law unit:

  • A discrimination dismissal of a high flying professional employee (a head teacher)
  • A large sum of compensation awarded to the employee for the dismissal (nearly £700,000)
  • Direct discrimination on the basis of a protected characteristic (the employee’s sexual orientation) in terms Sections 4, 12 and 13 of the Equality Act 2010
  • The real problems faced by the employee in attempting to mitigate his losses (which the amount of the compensation award reflects)
  • Breach of disciplinary procedures by the employer
  • Breach of human rights i.e. Article 8 of the European Convention on Human Rights (right to privacy and family life)
  • Alleged reputational damage caused to the employer as a result of the employee’s conduct
  • The reversal of the burden of proof
  • The use of hypothetical comparators

The facts

Matthew Aplin is an openly gay man who was the head teacher of Tywyn primary school in Wales. He has been a teacher for 19 years and has an excellent professional reputation. In 2015, allegations about Aplin’s private life came to the attention of his employer (the School’s Board of Governors). It was alleged that Aplin had engaged in consensual sexual relationships with two 17 year old males that he had met through Grindr, the well known dating app. Users of Grindr must be aged 18 or over and, significantly, Aplin did not suspect the true age of the two males.

Aplin believed that the two young men were over 18 and, in any case, users of Grindr have to be aged 18 or over.

Following these allegations of alleged misconduct, Aplin was suspended and the Board of Governors commenced a disciplinary investigation.

At the request of the Governors, an investigating officer (Mr Gordon) was appointed by the local council. Mr Gordon’s terms of reference in respect of Aplin’s behaviour were as follows:

  • (a) had this brought the reputation of the School into disrepute?
  • (b) had it impacted on his ability to undertake the role of Head Teacher?; and/or
  • (c) had it demonstrated so gross an error of judgment as to undermine the School’s confidence in him and, therefore, to call into question his continuation in the role?

Mr Gordon quickly concluded that Aplin should be dismissed from his post despite the fact that this employee did not represent a possible threat to children. Local Police officers were briefly involved in their own investigation, but significantly they later concluded that no crime had been committed by Aplin.

Despite this, Aplin was dismissed for gross misconduct by the School Governors.

He promptly appealed against his dismissal, but the Governors did not deal with this matter efficiently or properly. Angered at the perceived lack of fair treatment of his appeal, Aplin decided to resign from his employment and claim unfair (constructive) dismissal; discrimination by reason of his sexual orientation; and interference with his right to respect for private and family life.

The Employment Appeal Tribunal (which became involved to deal with technical aspects of the case) later noted:

There were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the disciplinary hearing.”

Ordinarily, the burden of proof lies upon the claimant (Aplin) to show that discrimination has taken place. In this case, there were enough factors present which meant that the burden of proof should shift to the respondent (the School Governors) who would now have to show that they had not discriminated against Aplin.

On the question of whether the burden of proof should be reversed, Judge Shanks in the Employment Appeal Tribunal had this to say:

“… in my view the thrust of it [the Tribunal’s reasoning] is clear and it provides a sufficient basis for the ET’s decision that the burden of proof had shifted on the question of whether Mr Aplin was treated unfavourably because of his sexual orientation.”

In arriving at this position, Judge Shanks was firmly of the view that:

.. the Tribunal had rightly recognised that the background to the whole case was intimately connected with Mr Aplin’s sexuality; they then judge that the procedural failures by the School were so egregious that the inference could be drawn that there was more to it than simply the fact that he had had lawful sex with two 17 year olds; and they therefore considered that it would be possible, in the absence of any other explanation, properly to infer that he had been discriminated against because of his sexual orientation. That seems to me a perfectly acceptable line of reasoning.

The decision of the Employment Tribunal

Aplin had been unfairly dismissed; and subjected to direct discrimination by reason of his sexual orientation.

As a point of interest, the case involved the use of hypothetical comparators to arrive at its decision, namely, would a heterosexual teacher (either male or female) who had sexual relations with two 17 year olds have been treated in the same way as Aplin? The Employment Tribunal concluded that such individuals would not have been treated any differently.

Interestingly, in its final judgement, the Tribunal found that, although a person’s sexual relationships are undoubtedly covered by Article 8 of the European Convention on Human Rights, it is not an absolute right. Such a right may be restricted or interfered with “where it is necessary for the protection of morals” in “a democratic society”:

Thererefore, we consider that it is possible to conclude that in the circumstances of this case the claimant could have been disciplined
for his admitted conduct within the qualification in Article 8(2). …

… However, a fair process would require the respondent to consider whether the claimant was aware that the individuals were 17 years of age. Further it would have to consider what the real risk of the issues becoming public were and therefore what the real potential for
reputational damage was.

The two 17 year olds were children in the eyes of the law and Aplin, as a Head Teacher, could be viewed as someone who was in a position of power and that position which could be abused by him.

As Aplin had admitted to his conduct (the relationships with the two males), the Employment Tribunal concluded that there was at least. 20% chance of him being dismissed successfully – had the proper disciplinary procedures been carried by the employer (which of course they were not). In this respect, Aplin suffered a 20% deduction in the overall compensation awarded to him as per the guidelines originally laid down in Polkey v AE Dayton Services Ltd [1987] UKHL 8.

Links to the decisions of the Employment Tribunal and the Employment Appeal Tribunal can be found below:

https://assets.publishing.service.gov.uk/media/5dcd4bf140f0b608cb5cb738/Mr_Aplin_v_The_Governing_Body_of_Tywyn_Primary_School_-_1600635.2016_-_Judgment.pdf

https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2019/0298_17_2203.html&query=(Tywyn)

A link to the story on The Independent’s website can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.171119/data/9205646/index.html

Copyright Seán J Crossan, 8 December 2019

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sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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