Facts

A teacher, Ms Dippenaar, was employed by Bethnal Green and Shoreditch Education Trust (the “Education Trust”). She had 12 years’ service and was on the highest grade for a teacher of her status. Ms Dippenaar had received positive and satisfactory teaching assessments between 2006 and 2012. A new Head of Faculty/Director of Learning was appointed in 2012, after which Ms Dippenaar began to receive reports which suggested her teaching required improvement and was unsatisfactory. No substantial explanation was provided as to where her teaching was falling short. The Head of Faculty/Director of Learning referred Ms Dippenaar to an informal capability process. This lead Ms Dippenaar to believe that there was no other reason for the treatment by the Education Trust than for the expense of employing her compared to a more junior teacher.

Discussions surrounding the signing of a settlement agreement began, which was conditional upon an agreed reference. The Education Trust reneged on this deal by providing a sub-standard reference. Ms Dippenaar brought claims for constructive unfair dismissal and indirect age discrimination.

Decision

The Employment Tribunal (“ET”) upheld Ms Dippenaar's claims.

The Education Trust had a formal capability procedure in place, yet they decided to manage Ms Dippenaar’s supposed poor performance completely outside of that process. The ET found that the Education Trust had made up their mind about Ms Dippenaar and refused to provide an acceptable reference out of spite. This destroyed the relationship of trust and confidence between the parties.

The ET satisfied itself that Ms Dippenaar had suffered disadvantage because of the age group to which she belonged, namely teachers aged 37 to 65. The particular disadvantage suffered was the Education Trust subjecting Ms Dippenaar and other members of her age group to a capability procedure and the manner in which it was conducted. The Education Trust was using the capability procedure to force Ms Dippenaar out of her role – this was causally connected to the protected characteristic of her age.

Regarding burden of proof, the ET concluded that since Ms Dippenaar had proven facts which allowed the ET to conclude that the Education Trust had committed an act of unlawful discrimination, it was then for the Education Trust to prove otherwise. The ET considered the cases ofBarton v Investec Henderson Crosthwaite Securities Ltd and Igen Ltd v Wong for guidance on the test for discharging the burden of proof. Since the Education Trust had failed to prove that unlawful discrimination was not committed, the ET found that Ms Dippenaar’s age, her experience and therefore her expense appeared the only explanation as to why she was subjected to less favourable treatment.

A copy of the judgment is available here.

A summary of the EAT decision is available here.

Miss J Dippenaar v Bethnal Green and Shoreditch Education Trust (Bethnal Green Academy), 5 November 2014, East London Employment Tribunal