Handle with care! Disciplinary procedures and unconscious bias

Mr Aplin, who was openly gay, was headteacher of a primary school. He met two 17 year old men on Grindr and they all had sex. A local authority review concluded that Mr Aplin had committed no criminal offence, nor were there child protection issues. However disciplinary action was recommended.

The school dismissed Mr Aplin for: bringing the school into disrepute; the effect the allegations had on his ability to perform his role; and loss of trust and confidence in him to perform his role in future. There were numerous procedural errors in the disciplinary process before dismissal, including the preparation of a totally biased investigation report. Mr Aplin appealed the decision to dismiss him. Following further procedural errors relating to his appeal, he resigned claiming constructive unfair dismissal and direct sexual orientation discrimination.

Mr Aplin succeeded with both of his claims at the employment tribunal, although the discrimination claim succeeded only in relation to the investigating officer, who was found to have an “unconscious bias” against Mr Aplin. The tribunal also considered that by filing his appeal Mr Aplin had affirmed his employment contract, although the errors in the appeal process amounted to constructive dismissal.

The school appealed to the Employment Appeal Tribunal (EAT), which upheld the tribunal’s decision. The errors in the process were so egregious that in the absence of any explanation it considered they must be due to Mr Aplin’s sexual orientation. The EAT also found the tribunal was wrong to say that by bringing his appeal Mr Aplin had affirmed his contract.

The number of errors in the disciplinary and appeal processes, where Mr Aplin’s sexual orientation was central to the allegations, led to an inference that his treatment was due to his sexual orientation. Employers should be aware of the issue of unconscious bias – and also of the dangers of permitting multiple errors in processes.