An inference of bias is enough to determine discrimination

An Employment Appeal Tribunal (EAT) decision has reinforced the principle that inferenceof discrimination based on sexual orientation is enough to establish discrimination.

In the case, the claimant, an openly gay headteacher, brought a claim for constructive dismissal and discrimination on the basis of sexual orientation against his employer. The school board had launched a disciplinary investigation into the claimant following revelations about his sex life outside of work (he had engaged in sexual conduct with two 17-year-old boys whom he met through the Grindr dating app) and ultimately dismissed him.

There were errors and omissions throughout the disciplinary process, with the claimant not being supplied with the correct information. The school had engaged a local authority investigation officer to lead the investigation and the EAT found that the officer had proceeded with unconscious bias against the claimant, namely by proceeding on the basis that child protection issues were involved when the local authority had already confirmed they were not.

It was concluded that the officer’s report was biased and that their conduct inferred discrimination based on sexual orientation. The EAT found that the failures in the disciplinary process were so stark that clearly there must have been factors influencing the investigation other than the instances of lawful sex outside of work. It was therefore possible, in the absence of any other explanation, to infer that the claimant was discriminated against on the basis of his sexual orientation.

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