Constructive Dismissal: Consequences of mishandling disciplinary proceedings

Judge dismisses a Welsh Primary School’s Appeal in relation to gay Head Teacher who had won his claim for constructive dismissal

Mr Aplin, an openly gay headteacher at a primary school who had sex with two 17-year-olds he met through the dating app Grindr. Mr Aplin claimed that he believed they were older. The police and the local authority’s social services department where made aware of the matter and Professional abuse strategy meetings (PASMs) took place. Following this the PASMs concluded that no criminal offence had been committed and no child protection issue arose because the two 17-year-old’s were over the age of consent.

During this process the school governors had suspended Mr Aplin and following an investigatory report, the school invited Mr Aplin to a disciplinary hearing. They had alleged that Mr Aplins behaviour had brought the school into disrepute and impacted on his ability to undertake the role of headteacher; adding that it demonstrated such a gross error of judgement that the school’s confidence in him had been undermined.

Whilst the disciplinary was pending Mr Aplin was not supplied with the PASM minutes or the police material. This resulted in delays disciplinary process, which did eventually take place. The disciplinary panel consisted of three school governors, who were assisted by a local authority lawyer and an HR Manager. Mr Aplin, who was accompanied by a union representative, argued that his conduct was lawful and part of his private life, and that the internal investigatory report and school’s stance were biased and homophobic.

The school governors decided to dismiss Mr Aplin regardless of his 19 years’ service on the basis that his conduct, although not criminal, affected the school’s reputation and called into question his role as its figurehead. It was decided by the panel that his actions made his position “untenable”.

Mr Aplin appealed against his dismissal but resigned before the school could hear his appeal. Following this Mr Aplin brought successful tribunal claims for constructive dismissal and sexual orientation discrimination.

According to the original tribunal, it was noted that 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. However, the school appealed this at the Employment Appeal Tribunal.

The judge ruled that he was unfairly and constructively dismissed and had been discriminated against by the investigating officer at the school because he was gay. The school governors appealed. Mr Aplin also cross-appealed, claiming the position of the governors had not been put under the same scrutiny for discrimination as the investigating officer.

A judge at the Employment Appeal Tribunal has now ordered the same tribunal panel to reconsider whether the governing body also discriminated against Mr Aplin. The school’s appeal was dismissed, with Judge Shanks upholding the tribunal’s finding that that the governors “effectively abdicated their roles”, allowing the investigating officer to take decisions “by proxy”.

This case reminds us that delays in a disciplinary procedure and failure to provide a clear picture of the allegations increase the risk of the employee resigning and claiming constructive dismissal.

Governing Body of Tywyn Primary School v Aplin EAT/0298/17


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