This is a cross-posted article, originally written on the Pure Employment Law Website and has now been posted here. Please note the date on which this article was posted originally and that any information within may have changed.
31 August 2022
In a recent Employment Tribunal judgment in the case of Sunderland v Superdry a fashion designer in her 50s was awarded over £96,000 after successfully claiming she was unfairly dismissed and discriminated against on the grounds of her age. As well as being a helpful reminder to employers of the risks of litigation, this case demonstrates the pitfalls of becoming complacent in performance management of staff.
Ms Sunderland joined Superdry in September 2015 with over 30 years’ experience in the fashion industry, having designed for several well-known companies and having achieved the level of senior designer. She joined with the title “designer”, as initially all designers held that title, but in the years that followed a hierarchy emerged with others hired or promoted to more senior titles. Despite Ms Sunderland raising this with management at the company, she continued to have the same title.
Regular performance reviews took place, but even with increased responsibilities and excellent reviews she still didn’t receive a promotion. Superdry’s management assessed the ‘flight risk’ of her leaving the business as low and the impact of her leaving as medium. A business reorganisation in 2019 left Ms Sunderland feeling effectively demoted.
Following her resignation in July 2020, while being required to work her notice, a new hire was brought in as ‘lead designer’ with considerably less experience. Ms Sunderland raised a grievance, which was not upheld, and later brought claims against Superdry for constructive unfair dismissal, direct discrimination, and harassment due to age.
In relation to constructive unfair dismissal, an employee needs to show that their employer was in fundamental breach of contract entitling them to resign and treat themselves as having been dismissed.
In relation to direct discrimination and harassment on the grounds of age, the following tests apply:
- A person (A) discriminates against another (B) if, because of a protected characteristic (in this case, Ms Sunderland’s age), A treats B less favourably than A treats or would treat others.
- A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic (age), and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
What did the Employment Tribunal decide?
The Employment Tribunal held that Ms Sunderland’s claim for constructive unfair dismissal was well founded and that there had been a fundamental breach of contract by Superdry due to the unreasonable workload placed on her, the recruitment and promotion of others undermining her standing in the business, and the failure to give her any clear explanation of why she had not been promoted.
Furthermore, Ms Sunderland had been directly discriminated against on the grounds of her age and had been treated less favourably in not being promoted and having her workload significantly increased without any effective assistance. The reason for the treatment was significantly because of her age, with the company’s view that older members of staff were likely to have a perceived lower flight risk. Turning to the claim for harassment, Superdry’s conduct had the effect of violating Ms Sunderland’s dignity, and creating a hostile, degrading, and humiliating environment for her.
Superdry’s reasons for not promoting Ms Sunderland were not accepted and the Tribunal was critical of their performance and promotion criteria – there was no written guidance for key elements of the criteria, they involved misleading terminology leaving room for confusion, and no clear understanding was communicated to Ms Sunderland. In the light of overwhelmingly positive reviews for her work, the Tribunal said that it would have been difficult for her to have known what more was required to obtain a promotion.
The Tribunal ordered Superdry to pay Ms Sunderland a total of £96,208.70, which included £7,500 compensation for injury to feelings.
Although this judgment isn’t binding on other Employment Tribunals, it makes for interesting reading and highlights the importance of keeping performance and talent management processes under review, having objective and documented criteria, applying these criteria consistently and communicating clearly with staff.
We can assist employers in handling difficult situations that can arise when promoting staff members over others which could help prevent you facing costly claims in the Employment Tribunal.