A claim for indirect discrimination may arise where an employer's practices, policies or procedures disadvantage a particular group and the employee personally. If an employee can establish this then the burden of proof shifts to the employer to objectively justify its actions. The application of this burden of proof test was crucial in determining the outcome of a recent case before the Employment Appeal Tribunal (EAT).
The case involved Ms Dippenaar, a 39 year-old teacher with 13 years’ experience. Since joining an Education Trust in 2006, Ms Dippenaar’s teaching was assessed at a high standard and her students performed well. However immediately after the appointment of a new Head of Faculty in 2012, Ms Dippenaar’s teaching was heavily criticised and she was subjected to a capability procedure without an adequate explanation.
Ms Dippenaar resigned and brought claims for constructive dismissal and indirect age discrimination. She claimed the Trust operated a practice of replacing more experienced teachers with less experienced teachers to save costs.
The EAT upheld Ms Dippenaar’s constructive dismissal claim, but dismissed her indirect age discrimination claim. Although she produced a set of statistics noting the age of various leavers and joiners, the EAT found limited evidence that the Trust had adopted a practice of replacing more experienced teachers with less experienced ones. Ms Dippenaar was unable to provide sufficient evidence of repeated conduct to establish a practice for the purposes of the indirect discrimination test. Even if there was such a practice, the EAT was not persuaded that teachers in Ms Dippenaar’s age group had suffered a similar and particular disadvantage when compared with younger teachers. Ms Dippenaar had failed to establish the necessary facts to reverse the burden of proof and the Trust’s fragile position on justification was therefore not exposed.
While the case confirms that employees must present convincing evidence in order to discharge the burden of proof, employers should bear in mind that a Tribunal’s view of the facts and evidence can be difficult to predict (and could depend on witness credibility). Recording non-discriminatory reasons for key decisions, maintaining up-to-date staff policies and providing appropriate training remain the best approach for limiting business exposure to potentially costly discrimination claims.