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Tags: age discrimination, diversity & inclusion, Sutherland v Superdry
Categories: Employment Law
The recent case of Rachel Sunderland against Superdry has really got me thinking about ageism in the workplace.
In brief the Bristol ET found that Rachel Sunderland, a former knitwear designer at Superdry, was denied multiple chances at career progression in favour of less experienced and younger colleagues. The case heard that this was partly because, as a woman in her 50s, bosses deemed her a ‘low flight risk’ and was likely to stay at the company “no matter how she was treated”. They promoted staff instead. As a result of this discrimination, Ms Sutherland was awarded nearly £100,000 compensation including injury to feelings.
I have always found age discrimination a fascinating area since it became a protected characteristic for the purpose of the Equality Act in 2006. With the other protected characteristics, such as sex, race, religion, pregnancy – you usually have the characteristic or you don’t. Age stands apart though. We all have an age, but it naturally, changes during our lifetime as we move along the spectrum.
The types of age-related attitudes (and potential discrimination) we might face due to age change as we age. In the workplace, this might start with being told ‘you are too young to be taken seriously’ or ‘you don’t look old enough to be doing this job’. As our career develops it might turn into ‘you’re too old to change your ways’ or seemingly constant job adverts asking for ‘recent Graduates with energy and enthusiasm’ (another way of saying someone ‘young’).
So many (perfectly legal) laws are made based on either being a certain age or not, that it is perhaps why, when they made age a protected characteristic, Parliament allowed for a possible justification of direct age discrimination – something that isn’t applied to the other protected characteristics.
Ageism is still very prevalent (and I would say) widely accepted in our society. I always look at greetings cards as a social barometer here. You still see many ‘crikey, you’re old’ type of cards for sale, but I would say that is now much rarer (thankfully) to see overly racist sexist or homophobic greeting cards in the shops. How many of us have bought a ‘dinosaur’ card for someone older? We are all familiar with the lazy stereotype of the worker in their late 50’s who is ‘counting down the clock’ to retirement.
With this easy ageism comes the types of issues that Superdry faced here. Ms Sutherland was in her 50 ‘s – highly experienced by all accounts and doing a great job. Yet she was consistently passed over for promotion by much younger colleagues. The ET found that this was because Superdry assumed that a person in the 50s would be so grateful for a job that she didn’t need to be rewarded with promotions and would simply not leave them. This was an expensive mistake to make. Not only did they lose a talented designer (part of her claim was for constructive dismissal), the compensation awarded was nearly in 6 figures. Such a case for a brand like Superdry makes the National news headlines so there is reputation harm too to factor in.
It is a good time to reflect on your own practice. Are there people in the organisation who are identified as being ‘low flight risk’ due to their age? Are they effectively being overlooked? I can think of several people in places where I have worked over the years who have definitely been labelled in that way. Assumptions around anyone’s careers aspirations are dangerous to make – and it doesn’t just happen with older people: I see it applied often to women who are pregnant or who have young children.
The moral of the story is, don’t fall into this trap. It could be both expensive and bad for business. Ensure that you have inclusive policies and a non-discriminatory talent management system (although Superdry thought they did, and this wasn’t enough to save them here). You have to have good honest conversations with all members of your team about their career aspirations. You might not be able to fulfil every wish or desire here, but it is always better to have these types of conversations than to make assumptions.
If you have an employment issue which is giving you a headache and would like to discuss how I might be able to help, do get in touch: anne-marie@menzieslaw.co.uk
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