A sudden change in appraisal judgment leads to constructive dismissal
Bethnal Green Academy was found to have unfairly dismissed a PE teacher with 13 years of experience whose teaching had been found to be consistently highly rated until the appointment of a new Head of Faculty/Director of Learning.
Ms Dippenaar’s performance had been reflected in an Ofsted inspection of the school and was supported by pupil progress data which were updated every six weeks. Her new Head of Faculty undertook teaching observations which drew negative assessments.
Whilst the Tribunal accepted that these were professional judgments and must be given considerable respect they must still be honestly and fairly reached. In this instance they found evidence that they had not met that standard and that they were “unexplained, stood in stark contrast to the previous record of the Claimant and to the views of an Ofsted inspector, and were not borne out by objective assessment of her pupils’ progress.”
The Tribunal found that the teacher had been subjected to an unjustified capability process on an inadequate basis which seriously damaged the relationship of trust and confidence between Ms Dippenaar and the school.
Ms Dippenaar had effectively been managed out of the school and forced into resigning her post with the suspicion that this was due to the fact that she was at the upper end of the pay scale and could be replaced with a cheaper teacher. The Tribunal awarded her almost £110,000 in compensation.
On Appeal, the finding that Ms Dippenaar had been indirectly discriminated against because of her age was overturned as there was insufficient evidence to show that this was a practice within the school. The statistics on staff turnover were not sufficient neither was the testimony of two teachers who reported that there was a rumour amongst staff that more senior teachers were likely to be replaced by less senior, and hence, cheaper ones.
- ensure consistency from one set of observations to the next, especially where the appraiser has changed. Do this by having a set framework which is objective and consistently applied.
- Use different appraisers for lesson observations – studies show that accuracy improves with variety.
- triangulate other forms of evidence, not just lesson observations – the latter is subjective by its nature whereas, for example, pupil progress data is more objective.
- if you adopt a practice of pushing experienced teachers out in order to bring in cheaper younger teachers then you are open to a claim of direct or indirect age discrimination. Don’t use bogus capability proceedings to fix your budget problems.
For guidance on how to write effective performance targets for teachers and other staff, read our short guidance piece here.