Theory or practice

Indirect discrimination occurs when one person applies a provision, criterion or practice to someone else which discriminates against them in relation to a protected characteristic. In Bethnal Green and Shoreditch Education Trust v Dippenaar, the Employment Appeal Tribunal (EAT) held that the term “practice” involves repetition of conduct, unlike the terms “provision” or “criterion” which can be proven by relying on an isolated incident.

Basic facts

Ms Dippenaar, a PE teacher at the school since 2006, was on the highest grade for a teacher of her status. Although her teaching had been consistently highly rated, she started getting negative assessments straight after the appointment of a new head of faculty in 2012. Feeling pushed out, Ms Dippenaar offered to leave on terms which included a fair reference. However, the head teacher then reneged on this agreement.

She resigned in May 2013 and claimed unfair constructive dismissal as well as age discrimination, arguing that she was managed out of her post because she had reached the top of her grade and was too expensive.

Relevant law

Section 19 of the Equality Act 2010 states that it is indirectly discriminatory to apply a provision, criterion or practice (PCP) to someone with a protected characteristic (such as age) if it puts or would put them at a “particular disadvantage” compared with people who do not share that characteristic.

Section 136 provides that the burden of proof is on the claimant to show that there are facts from which, in the absence of any other explanation, a tribunal could conclude that discrimination has occurred.

Tribunal decision

The tribunal held that, as there was no other credible explanation for the way she had been treated, Ms Dippenaar had been entitled to resign and had been unfairly constructively dismissed.

As for her claim for age discrimination, the tribunal identified the PCP as “the practice … of replacing more experienced teachers with less experienced teachers.” This put Ms Dippenaar at a disadvantage on account of the age group to which she belonged as the practice indirectly discriminated against older teachers.

EAT decision

The EAT agreed with the tribunal’s finding that Ms Dippenaar had been unfairly dismissed. However, it overturned the decision that the school operated a “practice” of getting rid of senior staff, as the tribunal had not established that the practice existed.

Although there was evidence to show that Ms Dippenaar had been treated as she was because of her seniority, there were only rumours that other senior teachers were likely to be replaced by cheaper ones. However, this was insufficient to prove that there was a practice as it did not involve repetition of conduct or the “anticipation of repetition” if the practice had just been adopted. The tribunal could have relied on “provision” or “criterion” if there was an isolated incident or the composite phrase provision, criterion or practice, but it did not.

The tribunal also failed to consider whether people in Ms Dippenaar’s age group had been put at a particular disadvantage compared with those in a younger age group. To prove indirect discrimination, she had to show that she was part of a group which was disproportionately disadvantaged by application of the assumed PCP. Until that had been proven the burden of proof could not shift onto the employer.

It therefore quashed the decision that Ms Dippenaar had suffered age discrimination.