Whether discrimination is subliminal or deliberate often makes little difference to the pain and distress it causes. The point was strikingly made by a case in which an openly gay primary school headteacher suffered the consequences of unconscious bias (The Governing Body of Tywyn Primary School v Aplin).
The teacher had had a sexual encounter with two 17-year-old males whom he had met via a gay dating app. An investigation took place after the incident came to the attention of the local authority that ran the school. It was, however, found that the teenagers had full capacity to consent to sex, that no criminal offence had been committed and that no child protection issues arose.
That was not, however, treated as the end of the matter and a disciplinary hearing ensued before the school's governors. The teacher argued that the incident was part of his private life and had nothing to do with his work. The panel of governors, however, found that he had committed a serious error of judgment that brought the reputation of the school into disrepute and summarily dismissed him. He lodged an internal appeal against that decision, but subsequently resigned on the basis that the disciplinary process had been totally inept, biased and infected by homophobia.
In later ruling that he had been constructively unfairly dismissed, an Employment Tribunal (ET) was highly critical of a number of flaws in the disciplinary procedure followed. In also upholding his discrimination claim, the ET found that a council officer who had investigated the matter had shown unconscious bias against him and treated him less favourably because of his sexual orientation.
Although the teacher had done nothing unlawful, the officer had, in his report to the governors, forcefully expressed adverse conclusions about his conduct. Although he had not been dishonest, the officer had shown himself unable to recognise, or to offer any explanation for, his bias and his irrational approach.
In dismissing the governors' challenge to the ET's conclusions, the Employment Appeal Tribunal (EAT) noted that the whole case against the teacher was intimately connected to his sexuality. In the circumstances, the ET had followed a perfectly acceptable line of reasoning in reversing the burden of proof so as to require the governors to show that there was no discrimination.
The teacher's claim that the governors themselves were guilty of discrimination had been rejected by the ET. However, the EAT upheld his appeal on that point and directed the same ET to reconsider the issue. The amount of his compensation will be assessed following that hearing.
The Advisory, Conciliation and Arbitration Service has useful guidance on this subject, for both employers and employees.