The importance of carrying out a fair and proper investigation process

The recent judgment in the case of The Governing Body of Tywyn Primary School v Mr Aplin, serves as a good reminder to employers of the value in carrying out proper and fair internal investigations.

Conducting a proper internal investigation is the key to a fair disciplinary process. Employers should therefore be mindful of their own internal policy, take time to follow the steps that it sets out, and ensure that the employee being investigated is given a fair chance to present their case, which includes having all the necessary information and a clear understanding of the allegations against them. 

The background

This case concerned the constructive dismissal and sexual orientation discrimination of an openly gay primary school Head Teacher, Mr Aplin.

In events unconnected to the school and any of its students, Mr Aplin became involved with two 17 year old boys whom he met via a dating app. When this came to the attention of the Local Authority’s Social Services Department, it arranged a Professional Abuse Strategy Meeting in order to determine whether any criminal offence had been committed, or whether any child protection issues arose. It was decided, in both instances, that they had not.    

Despite the Local Authority’s conclusion that safeguarding issues were not of concern in this case, the School proceeded to carry out its own internal disciplinary investigation in order to determine whether Mr Aplin’s conduct impacted on his ability to undertake his role as its Head Teacher. The investigating officer, Mr Gordon produced a report on his findings, which led to Mr Aplin’s disciplinary hearing and, ultimately, the School’s decision that he should be dismissed.

The procedural errors

The investigatory and disciplinary procedure was heavily criticized by the original Employment Tribunal for a number of reasons, including:

• Mr Gordon’s report was found to be neither factual nor objective, and it was selective in its use of the Professional Abuse Strategy Meeting minutes and the police report;
• moreover, Mr Gordon’s investigation of the case was said to be based on the premise that child protection issues were relevant, when it had already been established that this was not the case;
• the Local Authority’s lawyer was found to have been wholly responsible for the dismissal reasoning, rather than the School’s disciplinary panel, of which he was not a part; and
• importantly, despite Mr Aplin’s many requests, he was not supplied with the Professional Abuse Strategy Meeting minutes or the police report, both of which had been relied on by Mr Gordon in carrying out his investigation.

When Mr Aplin appealed the School’s decision to dismiss him, he encountered many more procedural issues, including that the School:

• continued to delay disclosure of the Professional Abuse Strategy Meeting minutes and the police report;
• instructed a barrister to present its case at short notice which, in part, led to an adjournment of the arranged appeal hearing;
• failed to give Mr Aplin sufficient notice of the fact that he was entitled to legal representation at the appeal hearing; and
• failed to consult Mr Aplin about further date changes to the appeal hearing.  

Mr Aplin ultimately resigned in August 2016, before the appeal was heard, complaining that there had been a “totally inept and unfair investigation”.

Mr Aplin brought successful claims for sexual orientation discrimination and constructive dismissal in the Employment Tribunal. The school appealed.

The EAT decision

The School’s appeal was dismissed. The EAT found that there could be ‘no challenge’ to the Employment Tribunal’s finding that the School’s conduct leading up to the dismissal amounted to breaches of the implied term of trust and confidence. Mr Aplin’s appeal gave the School an opportunity to remedy those breaches, however, further procedural errors ensued, entitling Mr Aplin to resign and claim constructive dismissal.

Key takeaways for employers

The mishandling of the procedure in this case were found to have amounted to a breach of the implied term of trust and confidence and a finding that Mr Aplin had been constructively dismissed.

Although the big issue for the Claimant was the sexual orientation discrimination which he had suffered, another relevant point for employers to note, is that this case throws spotlight on the significance of a reasonable and proper investigation. As demonstrated here, procedural errors during an internal process can give rise to a legitimate claim by an employee.

About the author

Eugenie is an Associate in our Employment team.  She acts for a mixture of corporates and private individuals. Eugenie’s experience includes advising on dismissals, negotiating settlement agreements, advising on contractual disputes, including the enforceability of post-termination restrictions and drafting employment contracts and staff handbooks.