Mr Aplin was the head teacher of a primary school and was openly gay. He met two 17-year-old males (still classed as children, by law) on Grindr and the three of them had sex.
Following the investigation and disciplinary hearing, Mr Aplin was dismissed for gross misconduct.
He appealed against his dismissal (and his employment continued to allow for this process).
However, during the course of the appeal process, Mr Aplin resigned and subsequently brought proceedings alleging constructive unfair dismissal and discrimination.
The Employment Tribunal (ET) was highly critical of the investigation carried out by the School for three main reasons:
- the investigating officer approaching the case on the basis that Mr Aplin was a potential danger to children;
- for drawing selectively on Professional Abuse Strategy Meeting minutes and police material which was not made available to Mr Aplin; and
- for failing to produce a factual and objective report, instead producing one which included value judgements and hostile conclusions.
The ET was also highly critical of the disciplinary process, and found defects in the appeal process. These, combined with the unsatisfactory investigation report, were held to amount to breaches of the implied term of trust and confidence, entitling Mr Aplin to resign and claim constructive unfair dismissal.
The ET found that the investigation officer had discriminated against Mr Aplin because of sexual orientation, and the Governing Body was vicariously liable for the same.
The ET did not find discrimination on the part of other Local Authority officers involved or the Governors. In respect of the Governors, the ET held that they had effectively abdicated their roles and allowed Local Authority officers to take decisions.
The case highlights the importance of training and experience for those dealing with disciplinary matters. The School was not criticised for taking action per se – and the majority of those involved were found to be concerned about the age of the children involved, not their gender – however, it was the procedural failings along the way (and the initial bias demonstrated) that rendered the process both unfair and discriminatory.
Further, had it simply been the investigation report that had been criticised, and the disciplinary panel had been able to coherently explain both that any subjective comments had been disregarded and the rationale for the decision reached, it would have been considerably easier for the school to argue that Mr Aplin would have been dismissed in any event, reducing compensation considerably.