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Designer deemed “low flight risk” awarded almost £100k in compensation

How should employers evaluate an employee’s promotion prospects? In this week’s alert we look at a case where an employer assessed an employee as a “low flight risk” and overlooked her for promotion which ultimately led to her resignation and a claim in the employment tribunal.

R Sunderland c Superdry PLC

Ms Sunderland joined Superdry in September 2015 after working in the fashion industry for over 30 years. She joined as a “designer” as, at the time, Superdry did not have a hierarchy within their design studio. Throughout her time with Superdry she performed her role across 3 main categories, men’s knitwear, women’s knitwear, and knitwear accessories. The unchallenged evidence presented to the Tribunal showed that Ms Sunderland performed very well within her roles and it was acknowledged by Superdry’s witnesses in the case that she was an excellent knitwear designer.

After Ms Sunderland had been working with Superdry for two years, two of her colleagues were promoted to Senior Designer. She asked why she hadn’t been promoted in her appraisal. Her manager, Mr Harvey, advised that to rise to Senior Designer she needed to undertake other responsibilities, including managing other members of staff.

The following year there was a reorganisation in Superdry’s design department. Following which, Ms Sunderland, took on some additional responsibilities. Despite this, she was not promoted.
Performance within Superdry was measured using a colour scale, ranging from red, amber, green and blue, which translated to “requires focus now”, “areas to develop”, “great” and “brilliant. An employee’s potential was graded in three bands: “stretch” being the highest, followed by “broaden”, with “mastery” at the lowest level (the assessment Ms Sutherland was given).

Superdry said Ms Sunderland had not been promoted due to her potential only being considered at the “mastery” level and that she was capable of working within one category, despite the fact she had worked in men’s knitwear, knitwear accessories and later women’s knitwear. The documents produced at the Tribunal regarding the performance reviews also showed that Superdry assessed its employees’ “flight risk”. Ms Sunderland’s risk of her leaving was considered to be “low”, whilst the impact of her leaving was assessed as “medium”. This assessment was neither discussed with Ms Sunderland before it was made or disclosed to her afterwards.

Ms Sunderland was placed on furlough leave between April 2020 and July 2020, on her return she was told that she would be designing the knitted accessory range for both men and women, which she felt to be a demotion. She resigned on 23 July 2020 and made claims for unfair dismissal and direct age discrimination. Ms Sunderland provided eight comparators, seven of whom were younger than her and all of whom had received a promotion or had been hired at a more senior level than her.

Decision

In assessing the claim for unfair dismissal, the Tribunal acknowledged that it was not disputed that Superdry failed to promote Ms Sunderland. The Tribunal found also that Superdry did “recruit, promote, and recognise the individuals” provided as comparators and found that this undermined Ms Sunderland’s standing within Superdry and her own perception of her standing within the business. The Tribunal found that Ms Sunderland resigned from her post as a result of the way she had been treated and that the way Superdry had behaved amounted to a fundamental breach of the implied term of trust and confidence. She was therefore successful in her claim for constructive unfair dismissal.

In relation to Ms Sunderland’s claim for direct age discrimination, the Tribunal noted that Superdry had failed to take into account the effect Ms Sunderland’s workload was having on her health and well-being, especially following her taking on the women’s knitwear responsibility, albeit on a temporary basis. Despite the significant increase in workload, Ms Sunderland was offered “minimal and ineffectual” assistance and no promotion. The Tribunal looked at Superdry’s reasoning behind its approach and considered the experience of the comparators Ms Sunderland had provided. The Tribunal found that Superdry’s treatment of Ms Sunderland was in significant part, because of her age.

The Tribunal drew inferences from Superdry’s flight risk assessment and considered that older members of staff were likely to be perceived as a lower flight risk. The Tribunal noted that Superdry “decided not to promote [Ms Sunderland] and subjected her to an over demanding workload with little or no real assistance, because she was an excellent designer on whom they could rely to create products that would sell well, and because they judged that there was little risk of her leaving the business no matter how she was treated”. The Tribunal found that she had been treated this way because of her age and that a similarly qualified designer who was significantly younger than Ms Sunderland would have been promoted. The Tribunal also rejected Superdry’s attempt to justify its position (it alleged Ms Sunderland’s lacked experience) referring to the multiple roles she had carried out both within the business and the industry. The Tribunal found Superdry had treated Ms Sunderland less favourably because of her age and it was unable to justify the treatment.
The compensation awarded to Ms Sunderland was £96,208.70.

Comment

This case highlights the importance of having appropriate policies and procedures to assess employees work performance which are also aligned to a company’s equality, diversity and inclusion policies and procedures. When any promotion arises, all potential candidates should be given an equal opportunity and assessed against objective, non-discriminatory criteria.

It is also interesting to note that age discrimination is the only type of direct discrimination which can be objectively justified, although Superdry failed in its attempt to objectively justify its treatment of Ms Sutherland in this case.

If you have any queries arising from this case or claims against your business for discrimination or unfair dismissal or would like to discuss any other issue of providing training for your staff, please contact one of our Employment team on 01228 552600 or 01524 548494.

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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