UNFAIR DISMISSAL – Constructive dismissal
SEXUAL ORIENTATION DISCRIMINATION
The Claimant was a 42 year old primary school Head Teacher. He was openly gay. He met two 17 year old males on Grindr and the three of them had sex.
The Local Authority set up a Professional Abuse Strategy Meeting which concluded that no criminal offence had been committed and no child protection issue arose. The School nevertheless brought disciplinary proceedings. 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. The panel of School Governors decided to dismiss the Claimant. He appealed against the decision, which had the legal effect of keeping his contract alive. There were further procedural errors in relation to the appeal and, before the appeal hearing, the Claimant resigned claiming constructive dismissal.
He brought proceedings in the ET claiming unfair dismissal and sexual orientation discrimination.
The ET found that he had affirmed the contract by bringing his appeal but that the continuing procedural errors in connection with the appeal entitled him to resign and that his claim of unfair constructive dismissal therefore succeeded. On the discrimination claim the ET found that the way he had been treated overall gave rise to a reversal of the burden of proof and that, in relation to the investigating officer, that burden was not satisfied and he had been subjected to sexual orientation discrimination, but that adequate explanations were provided in relation to the other parties involved, including the Local Authority lawyer and the Governors of the School.
The School appealed against the finding that the procedural errors in relation to the appeal amounted to a breach of the term of trust and confidence. The Claimant responded by saying that, regardless of the merits of this argument, it was irrelevant because the ET had been wrong to find that the Claimant had affirmed the contract by bringing his internal appeal. The School’s appeal was dismissed by the EAT on this basis for two reasons: (a) the ET were wrong to find that bringing the appeal gave rise to affirmation; rather it was a case of an employee giving his employer an opportunity to remedy the breach(es) of the implied term which arose from the investigation and disciplinary hearing and (b) in any event the School had expressly stated at an earlier hearing that they were not taking the affirmation point.
The School also appealed against the finding of discrimination on the basis that the ET were wrong to find that the burden of proof had been reversed. The EAT found that there were sufficient facts from which an inference of discrimination could be drawn and that the reverse onus was justified. The ET had found that the investigating officer had not given an adequate alternative explanation for his conduct and the finding of discrimination by him was accordingly upheld.
The Claimant cross-appealed on discrimination in relation to the Local Authority lawyer and the School Governors, maintaining that the ET had failed to take account of relevant evidence, had reached perverse conclusions and/or had failed to give adequate reasons for finding that there were adequate explanations for their conduct to satisfy the reverse burden of proof. The cross-appeal was allowed only in relation to the Governors; the ET’s finding that they had ‘effectively abandoned their roles’ and allowed their decisions to be taken by Local Authority officers ‘by proxy’ was not consistent with other factual findings and in any event the ET should have asked itself why the Governors might have abandoned their roles and allowed their decisions to be taken ‘by proxy’. The question whether the Governors had discriminated against the Claimant was remitted to the same ET.
Citations:
[2019] UKEAT 0298 – 17 – 2203
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 14 June 2022; Ref: scu.635156