A fashion designer considered unlikely to leave her role by Superdry management 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.
In Sunderland v Superdry, the Bristol employment tribunal heard that the claimant, who had a degree in knitwear design and more than 30 years’ experience working for well-known fashion retailers, had previously been a senior designer at other companies including Boden.
Sunderland 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 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.
Age discrimination
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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 Sunderland 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 scrutinised Superdry’s talent management process and how employees and their managers independently rated their performance and potential. Performance was measured using 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 did not find these categorisations particularly helpful, 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.
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” – Employment Judge David Hughes
“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 rationale 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 had to cover for a colleague who went on maternity leave. Despite this additional workload, and a new junior designer reporting into her, promotion was still not forthcoming. From April until July 2020 she was placed on furlough and on her return, she was told that she would be designing the knitted accessories range, for both men and women, which she says felt like a demotion.
She handed in her notice on 23 July 2020. Sunderland told the tribunal that, in the lead up to this, she had felt much frustration and emotional stress, and decided that “enough was enough”. She had made herself ill with the stress of the previous year, and couldn’t continue to work in an environment where unreasonable pressure was placed on her, combined with the refusal of management to give her the recognition that she felt her skills and experience deserved.
She 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 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.
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A spokesman for the retailer said: “Superdry is committed to equality for all of its employees. While the tribunal’s judgment does not reflect our culture and values, we thank it for conducting such a thorough review, respect its decision and will review its findings.”
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