Disciplinary Processes – What Not To Do!

17-06-2019

Authors: Louise O’Byrne, Shane McCarthy and Niamh Fennelly.

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In The Governing Body of Tywyn Primary School v Alpin, the UK Employment Appeal Tribunal (“EAT”) recently ruled that the adverse treatment of a gay teacher, in the context of a disciplinary process, constituted constructive dismissal and discrimination on the grounds of his sexual orientation, largely by reason of process failures on the part of the employer in the manner in which it conducted the disciplinary process.

Background

The claimant was employed as head teacher in a primary school in the UK. In 2015, he contacted two 17 year old boys on social media and, after two meetings, the three of them had sex together. The matter came to the attention of the police and the local authority, who held two Professional Abuse Strategy Meetings (“PASMs”) with the school. It was established that no criminal offence had been committed and that no child protection issue arose. Nevertheless, the school commissioned an investigation and an employee of the local authority was appointed as investigating officer. The investigating officer duly investigated and issued a report.

The school held a disciplinary hearing following the issuance of the investigation report. The investigator presented the school’s case at the disciplinary hearing and a local authority lawyer provided assistance to the disciplinary panel of school governors. The claimant, assisted by a union representative, argued that the act complained of was lawful and part of his private life and that the report and management of the case were biased and homophobic.

The disciplinary panel decided to dismiss the claimant, finding that his conduct, and inability to recognise any impact of his actions upon his role and on the reputation of the school, called his judgment into question and undermined the trust and confidence necessary to his employment, making it untenable for him to continue in his role. The school’s decision was confirmed in a letter drafted by the local authority’s lawyer.

The claimant appealed the decision under the school’s processes and his employment continued, pending the outcome of the appeal. Procedural issues led to a delay and he resigned, claiming constructive dismissal and discrimination on the grounds of his sexual orientation.

Process Failings

Both the UK employment tribunal and the EAT were critical of the investigation report for a number of reasons, including the fact that it approached the case on the basis that the claimant was a potential danger to children. The employment tribunal found that the report drew selectively from PASM minutes and police materials (which had not been made available to the claimant) and it was “laden with value judgments and conclusions which were hostile to [the claimant]”.

The EAT noted a number of procedural flaws in the disciplinary hearing. In particular:

  • under the relevant school disciplinary policies, the investigator should not have been involved in presenting the case at the hearing;
  • the investigator presented the case at the hearing in a way that was “far from objective”;
  • the claimant had not been provided with the PASM minutes at the time of the hearing, despite repeated requests and the investigator relied on those materials in his report;
  • the local authority lawyer instructed members of the panel to ignore parts of the report which lacked objectivity; however the EAT held that the panel were in reality unable to exclude the subjective elements from their consideration;
  • the investigator retired improperly with the panel at the conclusion of the hearing; and
  • the disciplinary panel did not review the detailed reasoning set out in the decision letter drafted by the lawyer. Therefore, it appeared that the lawyer, and not the disciplinary panel, was responsible for the decision to dismiss.

The employment tribunal’s findings

The employment tribunal found that the claimant had been constructively dismissed. Deficiencies in the investigation report and failings in the disciplinary procedure amounted to breaches of the implied term of trust and confidence.

The employment tribunal also found that the investigator had treated the claimant less favourably than he would have treated a hypothetical comparator because of the claimant’s sexual orientation and held the school’s governing body vicariously liable for that treatment. The employment tribunal referred to the fact that the investigator adopted a biased approach and expressed adverse conclusions, as opposed to adopting a fact finding role, noting:

… he was an experienced officer who understood his brief and was aware he was only meant to find facts and not express conclusions, but that he had reached adverse conclusions which he expressed in a forceful way and he had allowed himself to have a personal investment in the outcome of the process; overall he had adopted a biased and irrational approach towards [the claimant]”.

The school appealed the findings, but lost the appeal on both grounds.

The EAT’s decision

The EAT upheld the finding of constructive dismissal but disagreed with the employment tribunal’s finding that the appeal of his dismissal amounted to an affirmation of the contract. The EAT held that, in appealing, the claimant was making his objections clear and giving the school an opportunity to remedy the breaches of the implied term of trust and confidence.

In relation to discrimination, the school argued that there was no evidence to justify the shifting of the burden of proof to the school. The relevant statutory provision in the UK provides that if one such possible inference is that there was discrimination, that inference must be drawn unless the contrary is proved. The EAT was satisfied that the employment tribunal’s reasoning was clear and there was a sufficient basis for finding that the burden of proof had shifted. The EAT was particularly critical of the fact that the investigator did not provide an adequate explanation for his “biased and irrational approach” and held that the school was therefore unable to discharge this burden.

Advice to employers

In this case, the investigation and the disciplinary process were each tainted by fundamental procedural failings. In Ireland, section 85A of the Equality Employment Acts 1998 to 2015 provides that the burden of proof in discrimination cases shifts to employers to prove the absence of discrimination where an employee can establish facts from which discrimination may be presumed. In order to discharge this burden, once shifted to the employer, it is vital that the person tasked with investigating a matter with an equality dimension does so from an objective standpoint, is not prejudiced by his/her personal views on the employee or the subject matter of the investigation, and does not stray beyond the limited role of investigator. It is also essential that all parties understand the scope of the investigation (‘fact finding’ or ‘fact gathering’) from the outset and appropriate procedures are adopted in each case as the precise requirements of natural justice will be dependent on the nature of the investigation.

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