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2022 Cases: Sutherland v Superdry – age discrimination

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Summary: Was an employee who was not promoted because she was not considered to be a ‘flight risk’ discriminated against on ground of age?

Yes, said the employment tribunal (Tribunal) in Rachel Sunderland v Superdry PLC available here.

You might also like to read our blog about this case.

The Facts:

The employee, Ms Sunderland is a designer with over 30 years experience in the fashion industry. She was employed by Superdry as a designer from 2015 until 2020. During that time she was not promoted despite positive appraisal feedback and significant increases to her workload. However, several of her less experienced colleagues were promoted.

Ms Sunderland resigned in 2020 (when she was 56). She said that she couldn’t continue to work in an environment where unreasonable pressure was placed on her, combined with the refusal of management to give her the recognition that she felt her skills and experience warranted. She raised a grievance before she left which was dismissed.

Ms Sunderland brought claims in the Tribunal for constructive unfair dismissal and age discrimination.

Tribunal decision

The Tribunal found that Ms Sunderland had been unfairly dismissed and discriminated against on grounds of her age. The Tribunal considered that Ms Sunderland had every reason to anticipate promotion and had not been given any clear and satisfactory explanation as to why that did not happen.

The Tribunal did not accept the reasons that Superdry gave in evidence for not promoting Ms Sunderland (that she did not have the broader experience of leading teams and had not worked across ‘categories’). Rather, it considered that the real reason that Ms Sunderland had not been promoted was because Superdry had assessed her as a low ‘flight risk’. In other words, she was unlikely to leave the company regardless of whether she was promoted. However, Ms Sunderland was not told about, or given an opportunity to comment on this assessment and there did not appear to be any objective criteria by which flight risk was assessed.


It was therefore discriminatory on grounds of age to rely on it – given the disadvantage to older employees who maybe perceived as less likely to move on to another company. The Tribunal remarked that it looked as though in order to progress within the design team at Superdry over the age of 50, the designer would have to be exceptional or close to one of its founders.

The Tribunal was also very critical of the fact that Ms Sunderland had been described as ‘scatty’ by another member of staff. The Tribunal said the phrase was ‘loaded with subjectivity, the sort of term that verges on a term of abuse and would not […] be used to describe a younger, male colleague’.

The Tribunal awarded Ms Sunderland nearly £85,000, including an injury to feelings award of £7,500.


This is a warning to employers to make sure it has transparent and well designed procedures for deciding who should be promoted. In particular, employers should ensure they have inclusive policies and a non-discriminatory talent management system.

Deciding whether an employee is an unlikely flight risk is not a good method of assessment and it is dangerous to make assumptions about this. Managers need to hold discussions about career aspirations with all employees on an open, transparent and consistent basis. That includes staff who they may consider will not be interested in progression, including those who are pregnant, have young children or are older and traditionally may have been considering retirement.

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