A fashion designer who was employed by Superdry has been awarded £96,209 by an Employment Tribunal after successfully claiming she was discriminated against on the grounds of her age.
R Sunderland v Superdry plc: 1406389/2020
Case background
Ms Sunderland (the Claimant), a knitwear design specialist at Superdry (the Respondent), who is in her fifties, continuously saw colleagues with less experience than herself, given promotions ahead of her. This is despite her receiving excellent feedback in performance reviews and also increasing knitwear sales statistics significantly.
When Ms Sunderland joined Superdry in 2015, as a designer, there was no hierarchy and all designers had the same title.
During the legal proceedings, the Employment Tribunal heard that the Claimant had over 30 years of experience, having worked at brands like Fang Bros and Boden, and was seen as a senior designer at other high-fashion retailers she had previously worked at.
It was not until 2017 that Ms Sunderland raised the issue of promotions when two designers were promoted to senior designer level. When Ms Sunderland mentioned in her appraisal about these promotions her manager informed her that to become a senior designer, she would need to take on more responsibilities, such as managing her colleagues. Her manager agreed that this was something they could work towards which would allow her to progress.
By 2018, Superdry’s design hierarchy had changed and expanded to compromise roles, including:
- Trainee designer;
- Assistant designer;
- Designer;
- Lead designer; and
- Design manager.
During the legal proceedings, Florence Humphreys, an HR adviser at Superdry, informed the Tribunal that in order for Ms Sunderland to be promoted to lead designer, she would have needed to have had more experience of working in various categories, requiring little support from more senior work colleagues.
In response, Ms Sunderland told the Tribunal she had all of the requisite experience required in order to be promoted, as she had worked in the men’s and women’s knitwear categories at Superdry. Further adding that whilst doing so she took on extra responsibilities during the busiest time of the year whilst one of her work colleagues was on maternity leave. She also had a junior designer reporting to her.
In April 2020, the Claimant was placed on furlough. When she returned to work in July 2020, she was informed that she would be designing the Autumn Winter 2020 knitted accessories range (both men and women). This was seen by Ms Sunderland as a job demotion as she would be working on ‘key fobs and beanies’.
Ms Sunderland told the Tribunal that she decided enough was enough and told the panel how she was feeling frustrated and emotionally stressed after not only taking on an extra workload, but seeing no recognition from taking on an extra role. She also said she felt humiliated and degraded when junior employees asked her why she was not a lead designer.
She resigned in July 2020 and when handing in her notice she was informed she would have to work a three month notice period due to the design department being short staffed. The Claimant found this ‘demoralising’.
The Claimant subsequently brought a claim for direct age discrimination and used eight colleagues as comparators. It was found by the Tribunal that seven of these colleagues were younger than her and had all received a promotion or had been hired at a more senior level than herself, despite her having the experience of a senior designer, and this constituted age discrimination.
The Tribunal was given documents that showed that Superdry assessed employees’ “flight risk” – namely the likelihood and potential impact of an employee leaving the company. Ms Sunderland’s flight risk was seen as “low”. However, the impact of her leaving was seen as “medium”.
The Tribunal also looked into Superdry’s talent management process and found it confusing about the way Superdry would measure performance. For example, performance was measured using a colour code of red, amber, green and blue, which translated to “requires focus now”, “areas to develop”, “great”, or “brilliant”.
Whereas, potential was graded as “stretch” (being the highest), “broaden”, and “mastery” (the lowest level).
The Tribunal found this very unclear and could not distinguish the difference between “great” and “brilliant.”
The Tribunal’s decision
In the decision, the Tribunal 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.”
Further stating:
“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 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.”
Due to the reasons above, Superdry was ordered to pay Ms Sunderland compensation of:
- £54,798 for financial losses caused due to the Claimant being discriminated against;
- A basic award of £4,025;
- £7,500 for injury to feelings (see here for further information on calculation for injury to feelings); plus
- Interest of £7,698
This in total amounted to an overall award of £96,209.
Comment
This case demonstrates to employers how it is crucial not to discriminate against any staff member as they could risk facing an Employment Tribunal claim and have to pay out a substantial sum of compensation. Employees are protected under the Equality Act 2010 to ensure they are not taken advantage of or discriminated against.
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