· Comment

Superdry receives master class in the meaning of litigation risk

In the recent case of Rachel Sunderland v Superdry, the tribunal found that Ms Sunderland had been unfairly constructively dismissed, harassed and directly discriminated against on the grounds of age, primarily because, at 56, she was not regarded as a ‘flight risk’ and so was not promoted.

The tribunal awarded her £96,208.70.

This decision should be compulsory reading for all HR professionals because it neatly demonstrates what litigation risk really means and that the tribunal is able to make findings of fact on the evidence, and whose evidence impressed them and whose did not.

This will be published on the tribunal website and will appear every time there is a search of a name. Although this should never be a reason to shy away from defending a claim, it needs to be clearly understood internally that there are risks.

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Unusually there was little dispute between the parties on the facts, the question was why – a question of fact for the tribunal and one that it will be very difficult to appeal.

Both parties agreed that Ms Sunderland had not been promoted to senior designer. This was a title that did not exist when Ms Sunderland had joined Superdry in 2015. She was a senior designer already but accepted the job on the basis that Superdry had no hierarchy and only ‘designers.’

However, within two years two members of the team had been promoted to senior designer and despite doing all she believed was asked of her, and more, she was not appointed.

Ms Sunderland said that the decision not to promote her was based on her age. Superdry said that the reason was because she did not have the broader experience of leading teams and had not worked across ‘categories’.

Despite it being a matter on which Ms Sunderland was being judged, there was a dispute between the parties as to what was meant by ‘categories’ which led the tribunal to comment: “We find that categories were not clearly understood by either party. It might have been said that categories had the quality sometimes attributed to elephants – difficult to describe but one knows them when one sees them.”

The tribunal was also very critical of the description of Ms Sunderland as ‘scatty’ saying it was “loaded with subjectivity, the sort of term that verges on a term of abuse and which the tribunal would not expect to be used to describe a younger, male colleague.”

They were unimpressed by the grievance officer, describing her evidence on unconscious bias as ‘shockingly complacent’ and that she was ‘not an impressive witness’ and the tribunal had ‘real difficulty accepting the truth’ of one of her answers. Google her name and the judgment appears.

So, when the only decision to be made is ‘why’ this happened, both parties need to understand the risks involved, including the risks to the reputation of senior managers within a business, as well as the risk to the company’s reputation.


Beverley Sunderland is managing director at Crossland Employment Solicitors