Significant failures in disciplinary process supported inference of discrimination

The Employment Appeal Tribunal has upheld a tribunal’s ruling that serious shortcomings in the way disciplinary proceedings were handled supported an inference of direct discrimination because of sexual orientation.

The claimant was an openly gay head teacher of a primary school. In August 2015 he met two young men of 17. After two meetings, the three of them had sex together. Following an investigation by social services and the police, it was established that the two young men (whom the claimant had believed to be 18 or over) had full capacity to consent to sex, no criminal offence had been committed and no child protection issue arose.

However the agencies involved recommended that the school consider disciplinary action. A disciplinary hearing finally took place in May 2016, the claimant having been suspended in the meantime. The panel of governors decided to dismiss him.

The employment tribunal was highly critical of the disciplinary process. Its primary concern was that the investigation report was not objective, but there were also concerns about failure to supply key documents to the claimant. In addition, the investigating officer was also involved in presenting to the case to the panel, which he did in a manner which was “far from objective”.

The claimant appealed against his dismissal, relying on these failings.  He also alleged that the hearing had been driven by homophobic beliefs and that the decision had wrongly involved child protection issues which were not relevant. However, following further procedural failings, he resigned before the appeal hearing took place. He then brought claims for constructive unfair dismissal and direct discrimination because of his sexual orientation, both of which the employment tribunal upheld.

The school’s key argument on appeal was that it was not enough to show that it was “possible” to draw an inference that there had been discrimination on grounds of sexual orientation.  However the EAT pointed out that this was a misunderstanding of the burden of proof provisions in the Equality Act. It said that where a number of inferences can be drawn from the same set of facts, and one such inference is that there has been discrimination, that inference must be drawn unless the contrary is proved.

While unreasonable treatment on its own is unlikely to support such an inference, where the claimant’s sexual orientation was “right at the centre of the case” the tribunal had been entitled to make a judgment that the failings in the procedure were so unreasonable that it was possible to infer that “there must have been more to it than simply that he had sex with two 17 year olds.”

Arguments that shortcomings in the disciplinary process amount to a breach of contract, or a failure to make reasonable adjustments, are relatively common. But it is rarer for claimants to argue successfully that they also amount to direct discrimination. This case is a reminder that such arguments can succeed if the failings are particularly serious, even if there is no direct evidence of discrimination.

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