Enough is Enough – Superdry Guilty Of Age Discrimination

On 5th July 2022 news emerged of a successful discrimination claim which had been submitted in the Employment Tribunal against leading clothing brand, Superdry. The claim had apparently been promulgated by a vastly experienced fashion designer.

What Happened In The Case?

The Claimant was recruited by Superdry in 2015 and as far as she could observe there was no hierarchy and all colleagues were ‘designers’. The Claimant’s career appeared to have been progressing and she received outstanding appraisal outcomes whilst working in knitwear. The Claimant assumed she was contributing to the department’s success and reasonably thought she could be in contention for promotion. However, she observed numerous colleagues being promoted to senior positions and she felt overlooked. During her meeting the Claimant cited evidence of two colleagues who had been promoted and reasonably asked what she needed to do to achieve a promotion. The appraiser earmarked the Claimant to carry out more line manager duties for inferior colleagues.

What Did The Claimant Claim?

In the next twelve months following the appraisal the Claimant submitted a claim for discrimination due to age. In direct discrimination claims it is important to put forward by way of evidence a comparator. The Claimant submitted eight comparators. A staggering eighty-eight percent of those persons put forward were younger than the Claimant. Every one of this high percentage had been promoted to a higher position in the organisation.

Be Sure Disclosure Will Find You Out

Throughout the claim documents disclosing revealing how the business had appeared to have passed judgment on their entire workforce in terms of the probability of them departing from the organisation. The employer’s real opinion was contained in a disclosed document and considered the Claimant to be a low-risk of vacating her position. Colleagues were assessed on a low, medium and high-risk basis. Interestingly the business had carried out impact assessments upon each induvial colleague in terms the significance it would have if the claimant left. This was deemed to be a medium-risk. Eventually the Claimant resigned citing feeling of humiliated when younger colleagues inquired into her junior status and was demoted.

What Did The Tribunal Say?

The Employment Tribunal found that the Claimant had been discriminated against due to her age. The judge found the reasons cited by the employer for not promoting the Claimant to be ‘flawed’ due to ambiguity, was misleading and was unclear because she could not understand how to gain promotion. The court appears to have rejected the ‘flight-risk’ test. The judge described the situation facing the employer when implementing this criteria as something of a predicament because it was:

• ‘management conjecture’
• done without any objective criterion to judge flight-risk,
• not communicated to the Claimant until disclosure and
• treated the Claimant negatively.

The Employment Tribunal rejected the employer’s assertion that she needed more management experience because she was experienced. This appeared to have tipped the balance in the Claimant’s favour, the contradiction seemed to persuade the Employment Tribunal and it awarded compensation of around £100,000.

Lessons Learned?

Lawyers should be advising business clients to:

• avoid the perception that younger workforce members are being promoted at the expense of younger colleagues
• not use contradictory criteria and feedback
• to members of staff
• establish criteria for promotion which is clear to understand
• communicate the requirements clearly and
• ensuring they are identify the skill sets possessed by colleagues to avoid asking colleagues to attain skills in an area in which they are already competent.

If they follow this strategy, it will reduce the risk of employers being held liable for age discrimination.

ASSESSING FIRMS

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THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Moss, Rob – ‘Low flight risk’ designer wins £100k age discrimination claim against Superdry – 5th July 2022 –Personnel Today - 'Low flight risk' designer wins age discrimination case against Superdry (personneltoday.com)

[2] Crush, Peter – The end of the annual appraisal: what’s next for performance management? – 24 Aug 2015 – Personnel Today - The end of the annual appraisal: what's next for performance management? - Personnel Today

[3] Rachel Sunderland v Superdry PLC Case Number: 1406389/2020 – Bristol Employment Tribunal - EMPLOYMENT TRIBUNALS (publishing.service.gov.uk)

[4] Section 13 Equality Act 2010

[5] Section 39(2) Equality Act 2010

[6] Bournemouth University Higher Education Corp v Buckland [2010] EWCA Civ 121