Gay head teacher suffered sex discrimination over dating app threesome, tribunal rules

Heterosexual employee would have been treated differently, says appeal judge, criticising failings in investigation

A gay head teacher has won a sex discrimination case against a primary school which sacked him for having sex with two teenagers he met through a dating app.

The Employment Appeal Tribunal (EAT) ruled the school’s governors decided to dismiss Matthew Aplin, who was openly gay, despite both the police and his local authority bosses deciding no criminal offence had been committed during the liaison.

Both the initial employment tribunal (ET) and the EAT criticised the report into the investigation, which formed the basis of Aplin’s dismissal, and ruled that the report’s author had treated the headteacher less favourably than he would a hypothetical comparator because of his sexual orientation.

The EAT upheld the ET’s ruling that neither a hypothetical heterosexual man who had sex with two 17-year-old women, nor a heterosexual woman who had sex with two 17-year-old men, would have been treated in the same manner.



“Without explanation it was possible to infer that the less favourable treatment received by Mr Aplin was based on his sexuality,” the ET ruled.

Aplin had been working at Tywyn Primary School in Port Talbot, Wales, as deputy head teacher since 2009, and was promoted to head teacher in September 2015. 

In August 2015, he met two men through the LGBT dating app Grindr and, after two meetings, the three of them had sex together. Both men were 17, although it was Aplin’s case that the app requires users certify they are over 18, and he was led to believe both were older than 17. 

The matter came to the notice of the police and the Local Authority’s Social Services Department, which met on 28 August. This meeting was attended by the chairman of the school’s governors, and as a result Aplin was suspended on 1 September. 

A further meeting was held on 20 October where it was established no criminal offence had been committed and no child protection issue arose. However, the authorities recommended the school consider disciplinary action against Aplin.

The local authority’s investigating officer, Mr Gordon, produced a report which was heavily criticised by the original employment tribunal, which said Gordon had approached the case on the basis Aplin was a potential danger to children and had produced a report that was “laden with judgements and conclusions which were hostile” to Aplin instead of being factual and objective.

Two school governors discussed the report with Gordon on 18 March 2016 and decided the matter should proceed to a disciplinary hearing, which took place on 17 May. In the meeting, Aplin’s position was that what he had done was lawful and part of his private life. He claimed Gordon’s report and the management’s case were “biased and homophobic”. 

The disciplinary panel dismissed Aplin, finding that although his conduct was not a breach of the criminal law, it called into question “his judgment as to undermine the necessary trust and confidence in him”.

Aplin appealed the decision but eventually resigned in August 2016. He complained there had been a “totally inept and unfair investigation” which influenced the disciplinary panel. 

The tribunal, sitting in Cardiff in September 2017, ruled Aplin was unfairly constructively dismissed and was discriminated against by Gordon on the basis he was gay.

The ET also found the report and other failings in the disciplinary procedure breached the implied term of trust and confidence in Aplin’s contract of employment. 

The school’s governing body appealed to the EAT, claiming Gordon’s approach had not discriminated against Aplin. At the same time, Aplin cross-appealed against the ET’s finding that the governors themselves had not directly been discriminatory against him.

As well as upholding the ET’s initial finding that Alpin was discriminated against, Judge Shanks also allowed Aplin’s cross-appeal, saying the ET had not properly scrutinised the position of the governors. He remitted to the same tribunal to reconsider whether the governors, in addition to Gordon, had discriminated against Aplin. 

Nikita Sonecha, associate in the employment team at Royds Withy King, said the case demonstrated that a reasonable investigation was pivotal to a fair disciplinary procedure, and employers should take the time to establish the facts behind allegations to ensure they are not faced with discrimination or unfair dismissal claims. 

“The investigation stage is an important part of any disciplinary process, not just in terms of establishing whether or not there is sufficient evidence to justify proceeding to a disciplinary hearing, but also in terms of making sure the employee understands the allegations being made against them,” Sonecha said. 

Andrew Willis, head of legal at HR-inform, said the way an employer treated an employee during the investigation and disciplinary process may, in certain cases, lead to a breach of the implied term of mutual trust and confidence.

“An employee going through disciplinary action remains a member of the workforce and should be treated as such,” Willis said. “Keep them up to date, inform them about the next steps and ensure they are given full access to any information gathered that will be relied on at later stages.”

Tywyn Primary School could not be reached for comment.