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“Low Flight Risk” employee wins £96k in Age Discrimination case

A fashion designer considered by Superdry as unlikely to leave her role has been awarded £96,200 after successfully claiming she was discriminated against on the grounds of her age.

Ms Sunderland, a knitwear design specialist in her fifties, repeatedly saw colleagues with less experience handed promotions ahead of her despite her receiving “brilliant” performance reviews and Superdry’s knitwear sales recording significant growth.

The tribunal heard that the Ms Sunderland, who had a degree in knitwear design and more than 30 years of experience working for well-known fashion retailers.

She joined Superdry in 2015 as a “designer” as there was no hierarchy and all designers had that title. For six months she worked on men’s knitwear before also taking on men’s knitted accessories.

In 2017 two designers were promoted to “senior designer” level, which Ms Sunderland raised as an issue in her appraisal. Her manager explained that to become a senior designer, she needed to undertake other responsibilities including managing other members of staff. They agreed that this was something towards which she could progress.
A year later, Superdry’s designer hierarchy was expanded to comprise the following roles: trainee designer, assistant designer, designer, lead designer and design manager.

In her claim for direct age discrimination, she put forward eight colleagues as comparators, seven of whom were younger than her, and all of whom had received promotion or had been hired at a more senior level than herself.

Documents disclosed to the tribunal showed that Superdry assessed employees’ “flight risk” – the likelihood and potential impact of an individual leaving the company. Sunderland’s flight risk was assessed as “low”, while the impact of her leaving was assessed as “medium”.
The panel reviewed Superdry’s talent management process and how employees and their managers independently rated their performance and potential. They used a traffic light system for measuring performance such that the colours red, amber, green and blue, which translated to “requires focus now”, “areas to develop”, “great” or “brilliant”. Potential was graded in three bands: “stretch” being the highest, followed by “broaden”, with “mastery” at the lowest level.

The tribunal panel found these categorisations to be unhelpful, saying it was unclear whether brilliant performance was better than great, and whether someone who is given ‘broaden’ as their potential, for example, needs to broaden their potential to achieve mastery.

“It may be that the wish to use positive language, and in the case of the colour scheme come up with catchy phrases the first letter of which match the relevant colour, was prioritised over clarity,” the judgment said.
Superdry’s explanation for not having promoted Sunderland related to her potential not being either broaden or stretch, but merely mastery. It also claimed it was because Sunderland only worked in one category of design, despite her working in men’s knitwear, knitwear accessories and later also in women’s knitwear. Other designers assigned to a single category had nevertheless been made more senior designers.

In 2019, Sunderland took on additional responsibilities to cover for a member of staff off on maternity leave, and she was not supported when she complained of the volume of work. After a period of furlough she decided “enough was enough” and she resigned in protest at the unreasonable pressure she felt had been put upon her combined with the refusal of management to give her the recognition that she felt her skills and experience deserved. She also described feeling humiliated and degraded when junior members of staff asked why she was not a lead designer.

In its decision, the tribunal panel said: “We accept that the claimant had every reason to anticipate promotion to lead designer status. She had been given no clear and satisfactory explanation as to why she had not been promoted, which would have allowed her to understand what was required of her in order to gain promotion.”

The judgment reads: “The flight risk assessment appears to be based on nothing more than managerial conjecture. The inclusion of an assessment criterion that is likely to operate to the disfavour of the claimant, as an older person, and the apparent lack of any objective criteria by which flight risk was to be assessed – it was not even discussed with the Claimant – are problematical for the respondent.”
The panel did not accept the reasons advanced by Superdry for not promoting Sunderland. The judgment reads: “The respondent’s criteria for promotion were flawed: they left undefined what key elements of the criteria were and used ambiguous if not positively misleading terminology. We find that the respondent’s decision-makers … have sought to use these criteria to justify a refusal to promote the claimant that does not stand up on its own terms.

“To fail to promote the claimant on the basis that she could not work cross-category (when she could, and did), that she couldn’t work with minimal referral (which she could, and did) and that she lacked managerial/leadership experience (she did not) is a set of facts from which the tribunal could infer that the respondent discriminated against the claimant.”

Superdry was ordered to pay Ms Sunderland compensation comprising £54,798 in compensation for financial losses caused by the age discrimination, a basic award of £4,025, a further £7,500 for injury to feelings, plus interest totalling £77,698. This sum was grossed up to £96,209.

There are several learning points from this case:

• Make are to make sure that your appraisal system is unambiguous – do not use confusing or flowery language;
• If members of staff are not promoted, either on being turned down after an application or asking during a review meeting with their manager, that the reasons are clearly set out in writing and that the employees know what would be expected of them to progress.
• Employers should also be mindful of any practices that could be construed as discriminatory with regards to any protected characteristic – age, religion, ethnicity, disability etc.
• Do not be as arrogant as Superdry in making assumptions about likelihood of staff leaving and disregarding their needs as a consequence. If they are valuable to your business, look after them!

If this case has raised any concerns about managing staff in your own business, please get in touch to discuss what actions to take.
Posted on 27 Jul 2022
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