Avoiding unconscious bias in disciplinary proceedings
An interesting decision from the Employment Appeal Tribunal (EAT) has shown the importance of following correct procedures.
The case in question has highlighted that failings in investigation and disciplinary proceedings can lead to a Tribunal finding that the reason for those failings were discriminatory – possibly on the basis of unconscious bias on the part of an individual.
Facts of the Case
Mr Aplin was the Head Teacher at Tywin Primary School. He was openly gay and met two 17-year-old males on the gay dating app Grindr, and the three of them had sex. A Professional Abuse Strategy Meeting (“PASM”) decided that no criminal offence had been committed and no child protection issues arose. However, they recommended that the school investigate further to determine whether their reputation or his ability to do his job had been impacted, as well as consider whether this undermined the school’s confidence in him to be able to continue to act as Head Teacher.
A problematic investigation?
The investigation was carried out, although there were found to be numerous problems with this, particularly that the investigation officer believed that he was a risk to the children despite the PASM finding that no child protection issues arose. The matter went to a disciplinary hearing, the allegations reflecting the PASM’s recommendations mentioned above. To compound the issues with the investigation, there were further problems with the disciplinary process, which included a failure to provide important evidence from the PASM, which was relied on by the school, to Mr Aplin.
Mr Aplin denied the allegations, saying that he had not committed any offence, that this happened in his private life, and that the school’s management were biased and homophobic. Despite this, the school dismissed Mr Aplin, upholding all allegations.
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Under his Contract of Employment, Mr Aplin’s employment could not be terminated until he had had an opportunity to appeal. Mr Aplin did appeal the dismissal, in which he raised similar issues as in the original hearing, particularly that he believed he was being discriminated against because of his sexuality. There were yet further issues with the appeal procedure. As a result, Mr Aplin resigned before the appeal hearing took place.
Mr Aplin brought claims for constructive dismissal, arguing that the way they had conducted the disciplinary process breached his Contract of Employment. He also claimed that he had been treated that way because of his sexuality.
As always, it is very important to make sure that any investigation is as objective and unbiased as possible. The purpose of the investigation is to fact find – not to come to conclusions. A failure to do this is likely to taint the rest of the process.
The EAT’s decision
The Employment Tribunal (ET) found in Mr Aplin’s favour on both counts, declaring that:
- The failings in the process were so fundamental that Mr Aplin was entitled to resign and claim that he had been constructively dismissed.
- Given the fundamental nature of the failings, a presumption could be drawn that they might have occurred because of Mr Aplin’s sexuality.
- Since such a presumption could be drawn, it was for the school to show that the way they acted had nothing to do with his sexuality. The Tribunal found that the investigating officer had failed to do this and had therefore discriminated against Mr Aplin.
The school appealed to the EAT, arguing that:
- The fact that Mr Aplin had appealed meant that he had accepted the failings of the investigation and disciplinary process. Further, that the failings in the appeal process were not so fundamental to breach his Contract of Employment.
- With regards to the discrimination claim, the school argued that Mr Aplin would have to show that, “on the balance of probability”, the way investigating officer acted was because of Mr Aplin’s sexuality, in order to then move on to the question of whether the school had a non-discriminatory reason for their actions.
The EAT disagreed with both arguments. With regards to the first point, the fact that Mr Aplin had appealed did not mean that he had accepted the breaches that occurred at investigation and disciplinary stages. He was merely giving them an opportunity to rectify the problems in the appeal, which the Tribunal was entitled to find they had not done.
Regarding the discrimination point, the test as to when the burden of proof shifts is not as argued by the School. If Mr Aplin could show that one of the reasons for how the School acted could be because of his sexuality, even if this might be based on the unconscious bias of the individual, the burden would then shift to the School to show that this was not the case. Here, the ET stated, with the EAT agreeing, that Mr Aplin’s sexuality was right at the centre of the allegations and 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.
In addition, while the investigating officer understood his brief, he had an unconscious bias against Mr Aplin which he was unable to recognise.
Objective, unbiased investigations
For employers, there are a couple of important lessons that can be drawn from this judgment:
- As always, it is very important to make sure that any investigation is as objective and unbiased as possible. The purpose of the investigation is to fact find – not to come to conclusions. A failure to do this is likely to taint the rest of the process.
- If an investigation is recommended by an external body, as can be common in the education sector, be careful to stay within the remit of the recommendations and not (unless it is justified because, for example, there is new evidence available to do so) make findings that are contradicted by the original report/recommendation.
- Make sure that all evidence relied upon in disciplinary proceedings is made available, in good time, to the employee being disciplined. Also, ensure that you follow your own procedures when disciplining employees.
- Just because someone appeals does not mean that they accept the problems that have gone before. But if there were previous procedural problems, you should use the appeal as an opportunity to try and clean those up. Of course, make sure you don’t cause even more problems by mishandling the appeal!
- Finally, try to be conscious about why you are proceeding in a particular way. Unconscious bias can occur in all areas of employment, from recruitment to dismissal. There is some useful guidance on the ACAS site in relation to unconscious bias recruitment, although this can apply at all stages of employment.
For advice and guidance on conducting fair disciplinary proceedings, speak with one of our qualified Employment Law Advisers, who can walk you through the process so that you avoid any legal pitfalls and achieve the best possible outcome.