Example of Direct Age Discrimination

Superdry discriminated against ‘low flight risk’ designer due to her age.

A fashion designer working for a well-known clothing company was the victim of direct age discrimination, rules Employment Tribunal.

Facts

Ms Sunderland (the ‘claimant’) had worked in the fashion industry for 30 years before joining Superdry (the ‘respondent’) in September 2015 as a Designer. When the claimant first started her role she was told that the respondent operated a flat hierarchy and that all designers had the same title.

Initially, the claimant’s sole focus was men’s knitwear, sales of which increased by 63% in her first season where previously they had been falling. In 2017, she took on men’s knitted accessories as well. It was during this period that a hierarchy emerged, with the respondent promoting two people to ‘Senior Designer’. The claimant raised this in her March 2017 appraisal meeting, where she was told that, in order to advance to senior designer level, she would need to take on other responsibilities, including managing other staff members. Whilst the claimant agreed in the meeting that this was something she could progress towards, she never heard anything further on this. 

The metric used by the respondent to assess employees’ performance, a colour scheme system, came in for some criticism by the tribunal for its opaque nature. Review of employees’ potential was also done using a different metric, by reference to the terms ‘mastery’, ‘broaden’ and ‘stretch’, with mastery being the lowest level and stretch the highest. 

The regime as a whole was described by the tribunal as ‘not particularly clear’. The claimant was also expected to design over more than one category if she were to advance, however there were no clear definitions of category set out by the respondent. The tribunal found that the claimant’s belief that she was working across more than one category when designing for men’s knitwear, men’s knitted accessories and later women’s knitwear was a reasonable one.

Not discussed with the claimant, but included on her employment file, was an assessment of her ‘flight risk’ – this is, the likelihood of her leaving the respondent. This was assessed as low whilst the potential impact to the respondent should the claimant leave was assessed as medium. 

The claimant’s workload was increased dramatically in 2019, when she (in addition to her existing roles) became responsible for women’s knitwear during a colleague’s maternity leave. This came at the busiest time of year for knitwear designers and pushed the claimant to ‘breaking point’, especially as her sole assistant took an extended period of time away from work at the same time. 

The respondent placed the claimant on furlough in April 2020 due to the Covid pandemic. When the claimant returned to work in July 2020, she was informed that she would now be part of the ‘Centre of Excellence’ and designing the respondent’s Autumn/Winter knitted accessories range for that year. This, for the claimant, felt like a demotion. 

The claimant handed in her notice on 23 July 2020, having decided enough was enough. A contributing factor to her decision had been that junior members of staff had asked her why she was not a Lead Designer, which left the claimant feeling degraded and humiliated. 

Decision of the tribunal

The tribunal found that the claimant had been unfairly dismissed; the respondent had failed to give her a clear and satisfactory explanation as to why she had not received a promotion. Without any such explanation, it was also impossible for the claimant to understand what she could do or improve upon to secure a promotion in the future. 

The tribunal further found that the claimant had suffered a case of direct age discrimination. The tribunal considered the ‘flight risk’ assessment used by the respondent. Not only did it appear to have no objective basis or criteria, it operated to the disadvantage of older employees, who were considered more likely to have a lower perceived flight risk. The tribunal found the respondent’s justification for not promoting the claimant unconvincing, and found that their actions had been due to the claimant’s age. 

The claimant, the subject of direct age discrimination, was awarded a total of £96,208.70 by the tribunal.

Considerations for employers

This case is an example of direct age discrimination and highlights to employers the importance of using unambiguous and objective performance criteria when assessing employees. In order to limit the scope for dispute, employees should be given clear explanations on how each criterion is considered and applied to their role. Employees should ideally also be given actionable steps and realistic, achievable targets to improve performance, none of which were present in the above case. 

This blog was written by Michael Green, Trainee Solicitor at didlaw.