Tywyn Primary School v Aplin

An employee who appeals internally against a repudiatory breach does not, without more, affirm the contract. An appeal may instead preserve the employee’s objections while giving the employer an opportunity to remedy its breaches.

Under section 136 of the Equality Act 2010, the burden shifts where the facts permit an inference of discrimination in the absence of another explanation. The claimant need not first prove discrimination on the balance of probabilities. Serious and unexplained procedural failings, considered with the central relevance of sexual orientation, may justify that inference.

A tribunal must scrutinise and give adequate reasons for accepting a non-discriminatory explanation, particularly where decision-makers are said to have allowed others to act for them.

The claimant was an openly gay primary-school head teacher. Following lawful sexual activity with two 17-year-old males, the school pursued disciplinary proceedings despite conclusions that no criminal offence or child-protection issue arose.

The Employment Tribunal found serious procedural defects in the investigation and disciplinary process. It upheld claims for unfair constructive dismissal and direct sexual-orientation discrimination by the investigating officer. It rejected discrimination claims concerning the local-authority lawyer, other officers and the school governors.

The governing body appealed the constructive-dismissal and discrimination findings. The claimant cross-appealed against the rejection of discrimination claims concerning the lawyer, other officers and governors. The central issues were whether an internal appeal affirmed the contract, whether the burden of proof had shifted under section 136 of the Equality Act 2010, and whether the governors’ explanation had been adequately assessed.

1. The school’s appeal was dismissed. The Employment Tribunal erred in treating the claimant’s internal appeal as affirming his contract. In the employment context, the appeal maintained his objections to the defective investigation and disciplinary procedure and gave the school an opportunity to remedy the breaches of the implied term of trust and confidence. The school had also expressly declined to take an affirmation point at a preliminary hearing.

2. The abandoned contention that the tribunal should have assessed whether a dismissal fell within the range of reasonable responses was misconceived. In a constructive-dismissal case, the relevant conduct to be justified under section 98 of the Employment Rights Act 1996 is the employer’s repudiatory conduct, not a hypothetical decision to dismiss.

3. The tribunal was entitled to find that the burden of proof shifted under section 136 of the Equality Act 2010. Its reasoning, though capable of better expression, identified the central connection between the treatment and the claimant’s sexuality and procedural failures so serious that discrimination could properly be inferred absent an explanation. The statutory threshold is whether discrimination is a possible inference from the proved facts; it does not require the claimant first to prove discrimination on the balance of probabilities.

4. The finding of discrimination by the investigating officer was therefore upheld. The tribunal was entitled to find that an experienced officer had adopted an irrational and biased approach, had made forceful adverse judgments outside his factual role, and had provided no adequate explanation for that approach. Unconscious bias was consistent with his not being dishonest.

5. The claimant’s cross-appeal failed concerning the local-authority lawyer and other officers. Fairly read, the tribunal had found valid non-discriminatory explanations for their conduct, including the lawyer’s lack of relevant experience, limited imagination and attempts to address the substantive matter.

6. The cross-appeal succeeded concerning the governors. The tribunal had not adequately scrutinised the governors’ role, reconciled its finding that they had effectively abdicated it with findings that they made adverse decisions, or considered why they might have allowed officers to act by proxy. Its reasons were insufficient.

7. The question whether the governors directly discriminated against the claimant was remitted to the same Employment Tribunal. No further evidence was to be received, although further representations were permitted.

• Employment Appeal Tribunal: The governing body’s appeal against the findings of constructive dismissal and discrimination by the investigating officer was dismissed. The claimant’s cross-appeal was allowed only as to the governors, and that issue was remitted to the same tribunal.
• Employment Tribunal, Cardiff: In a decision sent on 28 September 2017, the tribunal found unfair constructive dismissal and direct sexual-orientation discrimination by the investigating officer, but rejected the remaining discrimination allegations.