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The Employment Appeal Tribunal (EAT) has held that where there was insufficient evidence to establish a provision, criterion or practice (PCP) an indirect discrimination claim could not succeed. The burden of proof should not have been shifted to fill a gap in the evidence.
In Bethnall Green and Shoreditch Education Trust v Dippenaar, Ms Dippenaar, a PE teacher at the top of her salary range and with 13 years' experience, had been consistently highly rated up until 2012. When a new Head of Faculty started Ms Dippenaar immediately received negative feedback from her teaching observations and she was subjected to a capability process which was found to be unjustified. Ms Dippenaar resigned and brought claims for unfair dismissal and indirect age discrimination. She alleged that she had been forced to resign as she was being managed out of her post because it was too expensive to employ her given the level of her salary reached through age progression. In her indirect age discrimination claim she alleged that the Trust had adopted a practice (not a provision of criterion) of dismissing employees on higher salaries which indirectly discriminated against older teachers.
The Employment Tribunal (ET) upheld both claims. It found that Ms Dippenaar had been subjected to an unjustified capability process with a view to seeking her dismissal or resignation and that there was no other explanation for this than the expense of her salary as a long-serving teacher. The Trust appealed.
The EAT dismissed the appeal regarding the unfair dismissal element of the claim; however, it upheld the ground of appeal relating to indirect age discrimination. The EAT found that there was insufficient evidence that the Trust had adopted a practice of dismissing employees due to the expense of higher salaries. A practice involves some kind of repetition of conduct or at least the anticipation of repetition and this was not established on the facts of this case. There was evidence of a rumour that more senior teachers were likely to be replaced by less senior teachers (who were cheaper to employ) but this was not sufficient. There had also been no consideration of whether those in Mr Dippenaar's age group had suffered a particular disadvantage by the application of this practice. As a result the EAT found that there was no proof on the facts that the Trust has committed unlawful discrimination. Consequently the burden of proof should not have shifted to the Trust to satisfy the ET that it has not discriminated against Ms Dippenaar as a PCP had not been established.
This case is a reminder to employers that performance management and capability procedures must be applied consistently with previous performance reviews and feedback. If there are any performance issues identified they should be raised as early as possible with the employee. In this case the ET and EAT were both particularly critical of the Headmaster and Head of Faculty's unexplained and sudden negative reviews of Ms Dippenaar's performance and the subsequent capability process, which stood in stark contrast to previous assessments and the subsequent capability procedure. It was found that these actions were capable of destroying the relationship of trust and confidence between employer and employee.