Unconscious Bias and Procedural Flaws

February 25th 2020

Unconscious bias and procedural errors can cost employers money. In the case below, it cost almost £700,000.

Aplin v Tywyn Primary School Governing Body

Mr Aplin was the head teacher at Tywyn Primary School. In August 2015, Mr Aplin met two 17 year olds via the Grindr dating app and the three of them had sex. The meet was reported to the Police and the Local Authority set up a Professional Abuse Strategy Meeting [PASM]. The PASM concluded that no criminal offence had been committed and there were no child protection issues.

The School Governors commenced disciplinary proceedings into Mr Aplin’s conduct and whether it impacted on his ability to perform his role. The Investigating Officer produced a fact-finding report which lacked objectivity and emphasised that child protection issues were involved, despite the PASM concluding otherwise. The Investigating Officer advised the panel members (School Governors) to dismiss Mr Aplin.

At the disciplinary it was decided that Mr Aplin’s employment should be terminated immediately.

Mr Aplin appealed the decision but then resigned following delays in the process and failure to disclose evidence. He later brought tribunal proceedings claiming unfair constructive dismissal and sexual orientation discrimination.  

The claim for constructive unfair dismissal and sexual orientation discrimination were successful. The flaws in the disciplinary process were to such an extent that they undermined the trust and confidence between the School and Mr Aplin. In presenting the evidence to the panel members, the Investigating Officer showed a lack of objectivity which was sufficient to show at least an unconscious bias from which an inference of sexual orientation discrimination could be made out.

The School was ordered to pay Mr Aplin £696,255.65 in compensation.

Unconscious Bias

The above case is a reminder that any unreasonable behaviour during the investigation which cannot be explained by non-discriminatory factors may amount to unconscious bias and therefore a finding of discrimination. A “striking” lack of objectivity is enough to infer there has been discrimination against an employee.

Procedural Flaws

The role of the Investigation Officer is to gather the facts and present the evidence – there is no space for personal bias (see above). The facts should be clear, as far as possible, and objective. In addition, the Investigating Officer should not stray into advising the decision maker(s) as to what they should do.

This case also serves as a helpful reminder to employers that they should deal with disciplinary processes and appeals swiftly and sufficiently. Delays and other procedure failings, such as not providing all of the evidence to the employee, can also result in an unfair dismissal or constructive unfair dismissal.

Get In Touch

If you would like more information on unconscious bias within the workplace, you can contact Carol Shaw on 01295 204140 or via email cshaw@se-solicitors.co.uk.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.