Ireland: Disciplinary Processes – What Not To Do!

Last Updated: 25 June 2019
Article by Louise O'Byrne, Shane McCarthy and Niamh Fennelly

In The Governing Body of Tywyn Primary School v Alpin, the UK Employment Appeal Tribunal ("EAT") recently ruled that the adverse treatment of a gay teacher, in the context of a disciplinary process, constituted constructive dismissal and discrimination on the grounds of his sexual orientation, largely by reason of process failures on the part of the employer in the manner in which it conducted the disciplinary process.


The claimant was employed as head teacher in a primary school in the UK. In 2015, he contacted two 17 year old boys on social media and, after two meetings, the three of them had sex together. The matter came to the attention of the police and the local authority, who held two Professional Abuse Strategy Meetings ("PASMs") with the school. It was established that no criminal offence had been committed and that no child protection issue arose. Nevertheless, the school commissioned an investigation and an employee of the local authority was appointed as investigating officer. The investigating officer duly investigated and issued a report.

The school held a disciplinary hearing following the issuance of the investigation report. The investigator presented the school's case at the disciplinary hearing and a local authority lawyer provided assistance to the disciplinary panel of school governors. The claimant, assisted by a union representative, argued that the act complained of was lawful and part of his private life and that the report and management of the case were biased and homophobic.

The disciplinary panel decided to dismiss the claimant, finding that his conduct, and inability to recognise any impact of his actions upon his role and on the reputation of the school, called his judgment into question and undermined the trust and confidence necessary to his employment, making it untenable for him to continue in his role. The school's decision was confirmed in a letter drafted by the local authority's lawyer.

The claimant appealed the decision under the school's processes and his employment continued, pending the outcome of the appeal. Procedural issues led to a delay and he resigned, claiming constructive dismissal and discrimination on the grounds of his sexual orientation.

Process Failings

Both the UK employment tribunal and the EAT were critical of the investigation report for a number of reasons, including the fact that it approached the case on the basis that the claimant was a potential danger to children. The employment tribunal found that the report drew selectively from PASM minutes and police materials (which had not been made available to the claimant) and it was "laden with value judgments and conclusions which were hostile to [the claimant]".

The EAT noted a number of procedural flaws in the disciplinary hearing. In particular:

  • under the relevant school disciplinary policies, the investigator should not have been involved in presenting the case at the hearing;
  • the investigator presented the case at the hearing in a way that was "far from objective";
  • the claimant had not been provided with the PASM minutes at the time of the hearing, despite repeated requests and the investigator relied on those materials in his report;
  • the local authority lawyer instructed members of the panel to ignore parts of the report which lacked objectivity; however the EAT held that the panel were in reality unable to exclude the subjective elements from their consideration;
  • the investigator retired improperly with the panel at the conclusion of the hearing; and
  • the disciplinary panel did not review the detailed reasoning set out in the decision letter drafted by the lawyer. Therefore, it appeared that the lawyer, and not the disciplinary panel, was responsible for the decision to dismiss.

The employment tribunal's findings

The employment tribunal found that the claimant had been constructively dismissed. Deficiencies in the investigation report and failings in the disciplinary procedure amounted to breaches of the implied term of trust and confidence.

The employment tribunal also found that the investigator had treated the claimant less favourably than he would have treated a hypothetical comparator because of the claimant's sexual orientation and held the school's governing body vicariously liable for that treatment. The employment tribunal referred to the fact that the investigator adopted a biased approach and expressed adverse conclusions, as opposed to adopting a fact finding role, noting:

"... he was an experienced officer who understood his brief and was aware he was only meant to find facts and not express conclusions, but that he had reached adverse conclusions which he expressed in a forceful way and he had allowed himself to have a personal investment in the outcome of the process; overall he had adopted a biased and irrational approach towards [the claimant]".

The school appealed the findings, but lost the appeal on both grounds.

The EAT's decision

The EAT upheld the finding of constructive dismissal but disagreed with the employment tribunal's finding that the appeal of his dismissal amounted to an affirmation of the contract. The EAT held that, in appealing, the claimant was making his objections clear and giving the school an opportunity to remedy the breaches of the implied term of trust and confidence.

In relation to discrimination, the school argued that there was no evidence to justify the shifting of the burden of proof to the school. The relevant statutory provision in the UK provides that if one such possible inference is that there was discrimination, that inference must be drawn unless the contrary is proved. The EAT was satisfied that the employment tribunal's reasoning was clear and there was a sufficient basis for finding that the burden of proof had shifted. The EAT was particularly critical of the fact that the investigator did not provide an adequate explanation for his "biased and irrational approach" and held that the school was therefore unable to discharge this burden.

Advice to employers

In this case, the investigation and the disciplinary process were each tainted by fundamental procedural failings. In Ireland, section 85A of the Equality Employment Acts 1998 to 2015 provides that the burden of proof in discrimination cases shifts to employers to prove the absence of discrimination where an employee can establish facts from which discrimination may be presumed. In order to discharge this burden, once shifted to the employer, it is vital that the person tasked with investigating a matter with an equality dimension does so from an objective standpoint, is not prejudiced by his/her personal views on the employee or the subject matter of the investigation, and does not stray beyond the limited role of investigator. It is also essential that all parties understand the scope of the investigation ('fact finding' or 'fact gathering') from the outset and appropriate procedures are adopted in each case as the precise requirements of natural justice will be dependent on the nature of the investigation.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions