Facts

Ms Dippenaar had been a teacher with Bethnal Green and Shoreditch Education Trust (“the Education Trust”) for 13 years, during which time her teaching was rated highly and her students performed consistently well. From 2012, when a new Head of Faculty/Director of Learning was appointed, Ms Dippenaar began to receive negative assessments following teaching observations. These assessments were not fully explained. Ms Dippenaar began to feel pushed out of her role and offered to leave in return for receiving a fair reference. In fact, she received a sub-standard reference.  

Ms Dippenaar concluded that the actions of her employer resulted from being on the highest pay grade for a teacher of her status. She was therefore subjected to an unjustified capability procedure with the objective of her dismissal or resignation. She brought claims against the Education Trust in the employment tribunal (‘ET’).

ET decision

The ET held that Ms Dippenaar had been unfairly constructively dismissed. Regarding indirect age discrimination, it held that she had proven that the Education Trust had committed unlawful discrimination through the practice of replacing experienced teachers with more junior equivalents.

A summary of the ET decision is available here.

The Education Trust appealed to the EAT on several grounds.

EAT Decision

The EAT upheld the decision that Ms Dippenaar was unfairly dismissed but quashed the finding of indirect age discrimination.

Ms Dippenaar had resigned because of a repudiatory breach and so had established her case of constructive dismissal.

In relation to the indirect age discrimination claim, although the ET had identified the PCP – the practice of replacing more experienced teachers with less experienced teachers – they had not found that the Education Trust applied the PCP to those who did not share her characteristic to show that it put her at a disadvantage.

The EAT highlighted that the ET relied solely on practice within the range of ‘provision, criterion or practice’ and that “practices” involve repetition of conduct, or at least the anticipation of repetition (as opposed to provision or criterion which do not). Ms Dippenaar provided statistical evidence to establish a practice which the ET did not find persuasive.

The ET had only concluded that there was indirect discrimination afterapplying the shifted burden of proof. However, the burden of proof could only shift if facts had already been established that a breach of the Equality Act 2010 had been determined. The words of Elias J in the case of Project Management Institute v Latif were echoed by the EAT, being shown to support the conclusion that before a reversal burden of proof can be applied in an indirect discrimination case, an employment tribunal must be satisfied in the first instance that the facts enable it to do so. These facts are for the claimant to prove. The ET in this case had failed to compare two different age groups in order to conclude whether one had suffered a disadvantage that the other had not.

When the ET considered compensation, they awarded a 25% uplift on damages. The EAT upheld this decision on the basis of the employer’s failure to follow a fair process.

The judgment is available here.

Bethnal Green and Shoreditch Education Trust v Dippenaar EAT/0064/15