Age discrimination is perhaps less often discussed than other forms of discrimination, but where such claims succeed, there are often learning points to be taken on board, as demonstrated by the recent case of Sunderland v Superdry PLC (Case No 1406389/200).
Ms Sunderland was employed by Superdry in 2015, having worked in the fashion industry for 30 years. Her job title was Designer, and she was initially responsible for designing men’s knitwear, which later extended to men’s accessories.
At the time of her appointment, there was no hierarchy for designers, who all had the same job title. This changed in 2017 when two designers were promoted to Senior Designer (a post changed to Lead Designer a few years later).
In 2017, Ms Sunderland raised with her line manager her desire to seek promotion; she was informed that she needed to undertake other responsibilities, including staff management, and this was something towards which she could progress.
In mid-2019, another employee began maternity leave; as a result, Ms Sunderland was informed that she would be responsible for designing both men’s and women’s knitwear, as well as men’s accessories.
A junior colleague began reporting to her to aid with the increased workload. Unfortunately, that colleague became unwell and took a period of annual leave.
For over a month of the busiest period for knitwear designers, Ms Sunderland had to undertake single-handedly almost two full-time roles, resulting in significant stress, and she broke down in front of one of her senior managers.
His response was to tell her that undertaking this work might be “good” for her; she inferred this to mean that completing this work would help her in obtaining a promotion.
However, Ms Sunderland was not promoted, although she considered that she was performing at a level that merited a higher status.
Therefore, in July 2020, she resigned from her employment, citing extreme work pressure and management’s refusal to give her the recognition that she considered her skills and experience deserved. She also raised a grievance about these matters, but it was dismissed.
Ms Sunderland, therefore, brought a claim for constructive unfair dismissal and age discrimination to the employment tribunal. Superdry argued that they had clear criteria for appointment to the Lead Designer role, including the requirement to work in different ‘categories’ of design, and management experience.
They argued that Ms Sunderland had not been promoted as she did not meet the criteria. However, there was uncertainty about what those requirements meant in practice.
In any event, the tribunal found that she had met them. For unclear reasons, several Lead Designers had been appointed, despite not meeting those requirements.
What also became clear was that, unbeknownst to Ms Sunderland, Superdry had assessed her ‘flight risk.’ (i.e., the likelihood she would leave the organisation).
She was not involved in any such assessment; the tribunal concluded that it was ‘based on nothing more than managerial conjecture.’
They also found that the reason for her flight risk being assessed as low was due to her age; older employees were likely to have a perceived lower flight risk.
The tribunal, therefore, concluded that Ms Sunderland’s treatment is based on the view that she would accept such treatment and was unlikely to leave. They found her treatment amounted to a breach of contract entitling her to resign, and the failure to promote her amounted to direct age discrimination.
This case highlights the importance of implementing unambiguous criteria for senior roles, justly applicable to all employees and where exceptions are clear and justified.
A failure to apply promotional criteria equitably leaves an employer open to claims of discrimination or a breach of contract justifying an employee’s resignation.
Safia Tharoo
Barrister, 40 Bedford Row, London
