MRS J WATSON (REPRESENTATIVE) FOR THE v Respondent — 2017

Mr Aplin was the head teacher of Tywyn Primary School. In August 2015 he contacted two 17-year-old males through Grindr and later had consensual sexual activity with them, which the tribunal recorded as lawful. After a PASM meeting he was suspended, and the tribunal found that the later disciplinary process was built around terms of reference about reputation, his ability to do the role, and trust and confidence, rather than a clear and consistent investigation of the issues identified at the safeguarding stage.

The tribunal found serious procedural failings in the investigation and disciplinary stages. Mr Gordon's report was found to be one-sided and not objective: he relied selectively on PASM minutes and police notes, included conclusions and value judgments contrary to policy, and later presented the management case at the disciplinary hearing. The disciplinary panel was inexperienced in serious disciplinary matters and relied heavily on LEA officers. The panel dismissed the claimant, but the tribunal held that the outcome letter purported to dismiss him before the appeal stage in breach of contract; when the claimant appealed and remained on pay and benefits, the tribunal found the dismissal notice was withdrawn. The later appeal process was also flawed, including late disclosure, late notice of a barrister, and rescheduling without consultation.

On that basis, the tribunal held that the cumulative matters amounted to a breach of the implied term of trust and confidence and that the claimant resigned in response to that accumulation of breaches, so the constructive dismissal claim succeeded. For the discrimination claim, the tribunal applied the reverse burden of proof under the Equality Act 2010. It accepted that some decision-makers, including Mr Hodges, LEA officers and the governors, had non-discriminatory explanations linked to inexperience or the way the process had been handled, but found no adequate explanation for Mr Gordon's biased investigation and report. Using hypothetical comparators, the tribunal concluded that the claimant had been treated less favourably because of his sexual orientation. Liability was determined only; the tribunal directed a remedy hearing to deal with compensation and contribution.