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Sexual orientation discrimination

The Employment Appeal Tribunal has recently considered whether a constructive dismissal and a sexual orientation discrimination claim can succeed based on the treatment of a gay head teacher.

The case

In August 2015, an openly-gay primary school headteacher had sex with two 17-year-old males he met through the dating app Grindr.

The matter was investigated by the police and local authority’s Social Services department and the teacher was suspended.

It was concluded that no criminal offence had taken place and there were no child protection issues, yet the school decided to take disciplinary action.

The disciplinary procedure was underlined with numerous procedural errors and the Employment Tribunal criticised the investigation for basing it on the fact that the headteacher was a potential danger to children, using material and minutes that were not made available to him and producing a report that was “laden with value judgments”.

Following the disciplinary hearing the headteacher was dismissed and, whilst he appealed the decision, he resigned prior to the hearing.

The Tribunal held that the various procedural breaches amounted to a breach of the implied term of trust and confidence and that the headteacher’s appeal request affirmed the contract, preventing any claim for the breach. It disagreed with this stance and held that the teacher did not affirm his contract but merely provided the school with the opportunity to remedy the breaches.

The headteacher was successful in his claim of sexual orientation discrimination as the investigating officer was unable to explain the reasoning behind his conduct.

The outcome

This case reaffirms that disciplinary procedures need to be followed step by step and independently conducted.

Procedural errors can leave organisations open for an additional claim of breach of implied trust and confidence and a request for appeal does not remove the right to these claims.

We frequently work with organisations, including educational establishments, managing dismissals and misconduct to minimise the risk of discrimination or unfair dismissal claims arising. Contact our Employment & HR team for support on 01332 340 211.

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