Bethnal Green and Shoreditch Education Trust v Dippenaar

For indirect discrimination under Equality Act 2010, the claimant must first establish the relevant primary facts. Where the alleged PCP is a practice, there must be evidence of repetition, or an anticipated repetition. The statutory burden of proof cannot fill a gap in proof of the PCP or of group disadvantage.

A claimant's individual disadvantage cannot alone establish that persons sharing the protected characteristic suffer a particular comparative disadvantage. In constructive dismissal, the question remains whether the employer's conduct, viewed objectively and in its full factual context, evinced an intention no longer to be bound by the contract.

An Employment Tribunal upheld the claimant teacher's claims for constructive unfair dismissal, breach of contract and indirect age discrimination. It found that the employer had subjected her to an unjustified capability process in order to remove an experienced and comparatively expensive teacher.

The Tribunal later awarded compensation, including a 25% uplift for breach of the ACAS Code, but did not gross up the awards for tax. The employer appealed the findings of constructive dismissal, indirect discrimination, bias and the uplift. The claimant cross-appealed on grossing-up.

The central issue on the discrimination appeal was whether the Tribunal had established a practice of replacing experienced teachers with cheaper recruits and a particular disadvantage to the relevant age group before reversing the burden of proof.

1. Appeal allowed in part. The appeal against the finding of indirect age discrimination succeeded. The finding was quashed. The appeals against constructive unfair dismissal and alleged Tribunal bias failed. The appeal against the 25% ACAS uplift and the claimant's cross-appeal on grossing-up were dismissed.

2. The Employment Tribunal had applied an appropriate constructive-dismissal test. The formulations in Courtaulds, Western Excavating, Woods and Tullett Prebon were materially consistent: the question was whether the employer's conduct, objectively viewed, showed an intention no longer to be bound by essential contractual obligations. The unjustified capability process, on the Tribunal's findings, was capable of seriously damaging trust and confidence and was supported by sufficient evidence. A finding of conspiracy was unnecessary.

3. Under section 19 of the Equality Act 2010, the alleged practice had first to be identified and proved as a primary fact. A practice requires repeated conduct or an anticipated repetition. The evidence established only the claimant's treatment; staff rumours and unpersuasive statistics did not establish the asserted practice.

4. Further, the Tribunal had not found on adequate evidence that teachers in the claimant's age group suffered a particular disadvantage compared with younger teachers. Her individual treatment could not prove the required group disadvantage. Section 136 could reverse the burden only after facts capable of establishing a section 19 contravention had been proved; it could not establish the PCP or comparative disadvantage themselves.

5. The 25% uplift was lawful. The disciplinary and grievance Code applied to performance issues, including where an employer uses a separate capability procedure. The Tribunal identified an unreasonable failure to afford a fair process and was entitled to select the maximum uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992.

6. The claimant could not raise grossing-up for the first time on appeal. The point was not exceptional, required factual inquiry into her tax position, and should have been advanced before the Employment Tribunal. The award was to be adjusted only to reflect the quashing of the age-discrimination finding.

• Employment Appeal Tribunal: allowed the employer's appeal on indirect age discrimination and quashed that finding; dismissed the remaining liability and remedy appeals and the claimant's cross-appeal.
• Employment Tribunal, East London: in a reserved judgment of 4 November 2014, upheld constructive unfair dismissal, breach of contract and indirect age discrimination. In a remedy decision of 17 March 2015, it awarded compensation including a 25% uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992.