5: Was there indirect age discrimination when an employee resigned in response to unjustified capability process?
In Bethnal Green and Shoreditch Education Trust (the Trust) v Dippenaar, the Appeal Tribunal considered whether a teacher in the highest salary band who had been subjected to an unjustified capability process was unfairly dismissed and had suffered indirect age discrimination.
Ms Dippenaar was employed by the Trust as a PE teacher. She was at the top of her salary range, having been consistently highly rated in her appraisals during her thirteen years of teaching. When a new Head of Faculty was appointed,
Ms Dippenaar started receiving negative feedback from her teaching observations, which was not fully explained. Feeling that she was being pushed out of her role, Ms Dippenaar resigned and brought claims for unfair constructive dismissal and age discrimination. She alleged that the Trust had wanted to manage her out because of the expense of employing her on the salary level she had reached through age progression.
The employment judge agreed that the Trust had subjected Ms Dippenaar to an unjustified capability process with a view to seeking her dismissal or resignation, and that there was no explanation for this other than the high cost of her salary as a long-serving teacher. It also found that the Trust had adopted a practice of dismissing experienced teachers on higher salaries which indirectly discriminated against older teachers. The judge therefore upheld Ms Dippenaar’s claims of unfair constructive dismissal and indirect age discrimination. Both findings were appealed by the Trust.
The Appeal Tribunal dismissed the Trust’s appeal against the finding of unfair constructive dismissal. However, it found that the employment judge’s decision on indirect age discrimination was flawed. The Appeal Tribunal noted that a practice involves some kind of repetition of conduct or at least the anticipation of repetition (as opposed to a provision or criterion which do not) and this was not established on the facts of this case.
Although there was evidence of a rumour that more senior teachers were likely to be replaced by cheaper junior teachers, this was insufficient to show that the Trust had adopted a practice of dismissing employees due to the expense of higher salaries. Crucially, there was no evidence that other teachers in Ms Dippenaar’s age group had suffered actual disadvantage. Since Ms Dippenaar had failed to show that a practice had been established, her claim of indirect age discrimination was quashed.
This case illustrates the risks of subjecting an employee to an unjustified capability process. Performance reviews and capability procedures must be undertaken honestly and fairly, and consistently with previous reviews and feedback. In this case, the employment judge was critical of the sudden and unexplained negative performance reviews, and emphasised that such actions can amount to a breach of contract by destroying the relationship of trust and confidence between employer and employee. Although the employee in this case did not succeed in her indirect age discrimination claim, employers must also be aware of the possibility of claims when basing any decisions on length of service and experience.
15 December 2015