In Bethnal Green and Shoreditch Education Trust v Ms Dippenaar, the EAT considered whether there was a provision, criterion or practice (“PCP”)of dismissing senior, more expensive teachers and replacing them with less experienced recruits. Ms Dippenaar had 13 years’ teaching experience and until 2012, her teaching had consistently been highly rated. Immediately following the appointment of a Head of Faculty, Ms Dippenaar started to receive negative teaching assessments which were in stark contrast to her previous assessments. Ms Dippenaar argued that the only plausible explanation for her treatment was due to the expense of her salary as a long service teacher.
The tribunal found that Ms Dippenaar had been subjected to an unjustified capability procedure which ultimately led to her resignation. Following her resignation, Ms Dippenaar claimed age discrimination and constructive dismissal, the latter being upheld both at first instance and on appeal. Ms Dippennaar’s age discrimination claim required further consideration on appeal.
In order to succeed with her claim of indirect age discrimination, the tribunal had to be satisfied that there was a PCP which put individuals who shared the same characteristic as Ms Dippenaar, (in this case, being over the age of 36) at a disadvantage compared to those who did not share it and the PCP put Ms Dippenaar at that disadvantage. In this case, Ms Dippenaar contended that there was a practice of replacing older, more senior teachers with less experienced staff. She sought to rely on both statistical and witness evidence in support of her assertion. Unfortunately for Ms Dippenaar, the tribunal doubted the extent to which it could rely upon her statistical evidence and made no finding that such a practice existed. That should have been the end of the matter and accordingly, Ms Dippenaar’s indirect age discrimination claim should have failed. Instead the tribunal went on to uphold Ms Dippenaar’s indirect discrimination claim without finding that a discriminatory practice existed.
The EAT quashed Ms Dippenaar’s age discrimination claim on the basis that there were insufficient findings to hold that there was a PCP and even if there were, there was no evidence to show that the PCP caused others in Ms Dippenaar’s age group a particular disadvantage. This case reiterates that it is for claimants to establish a prima facie case before the burden of proof shifts to the employer to show non discriminatory reason(s) for the employee’s treatment. Although on the facts of this case Ms Dippenaar was unable to discharge the burden of proof, employers should still evaluate promotion and recruitment criteria to ensure that individuals are promoted or recruited on merit, rather than reasons which may later be found to be discriminatory.