Constructive Criticism or Constructive Dismissal?


26 October, 2016

Can the criticism of a teacher give them grounds to resign and claim constructive unfair dismissal? In the case of Bethnal Green and Shoreditch Education Trust v Dippenaar, the EAT concluded that a teacher had been subjected to an unjustified capability process with a view to securing her resignation or dismissal, and that her eventual resignation amounted to unfair constructive dismissal.

The facts of this case concern a PE teacher of 13 years whose teaching had been consistently highly rated however following the appointment of a new Head of Faculty, her teaching observations began to draw negative assessments. The Claimant resigned as a result of feeling 'pushed out' and alleged that a she had been forced out because she had reached the top of her salary range and therefore was 'too expensive', she alleged that the School had implemented a practice of replacing experienced teachers with cheaper, less experienced employees.

The Employment Tribunal, and then later the Employment Appeal Tribunal held that the Claimant had been unfairly constructively dismissed. The Claimant maintained that the test was to look at the conduct of the employer as a whole and determine whether it was such that its effect, judged reasonably and sensibly, was that the Claimant should not have been expected to have to put up with it.

Therefore, the EAT upheld the Employment Tribunal's finding that the teacher had been unfairly constructively dismissed on the basis of an unjustified capability process with a view to seeking her dismissal or resignation but overturned a finding of indirect discrimination. It held that the Tribunal had failed to establish the existence of a practice of replacing more experienced teachers with less experienced ones as it had not examined evidence on this point but had rather relied upon unclear statistical evidence and "rumours" of the practice in witness evidence.

A principal issue in this case was that there was a distinct lack of evidence of any issues in relation to the teacher's performance. Therefore, in the absence of any evidence of the teacher's performance deterioration, the Tribunal was entitled to believe that the capability process had been entered into in the hope that it would discourage the teacher and cause her to resign.

This case is also interesting in that it explores how far a tribunal can go in analysing the judgment calls involved in evaluating a colleague in terms of their performance. The EAT emphasised that often it would not be appropriate for a Tribunal to enter into analysis of such judgement calls and that judges must always remain aware that they are "not Ofsted inspectors".

This case shows clearly the requirement for good practice when it comes to capability procedures and the need for Schools to have justifiable grounds for initiating such procedures and also emphasises that any justifications or concerns over capability should be made clear from the outset and as soon as they become apparent. Capability procedures must also be consistent with previous performance reviews a predominant issue in this case was the fact that the procedure initiated was clearly in stark contrast with previous feedback on the teacher in question. This case emphasises that failure to comply with good practice in this sense can be capable of destroying the relationship of trust and confidence between employer and employee.

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