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Managers’ confused performance assessment leads to big payout

6 Jul 2022
by Sharma Solicitors

A well-known clothes store’s flawed promotion and assessment process landed them with a £96,208 judgement at an employment tribunal.

Bristol employment tribunal upheld the claim of 56-year-old knitwear designer Rachel Sunderland that Superdry Plc discriminated against her because of her age and subjected her to unfair dismissal.

Rachel Sunderland was a respected specialist from September 2015 until her resignation in September 2020. She became distressed after younger, less experienced employees were promoted over her and how she was treated by Superdry managers.

After a five-day hearing, the employment tribunal accepted that Rachel Sunderland’s resignation amounted to unfair dismissal. They agreed that a fundamental aspect of her employment contract, mutual trust and confidence between employer and employee, had been breached.

Performance assessment

Managers assessed Rachel’s performance using a colour scheme but also used terms such as ‘great’. The tribunal regarded this as confusing and for instance could not understand why an employee was ‘great’ rather than ‘brilliant’.

Managers assessed Rachel as ‘great’ but did not promote her because of her alleged lack of leadership experience. Yet, the same managers promoted others whose leadership experience was similar to Rachel. Despite that, managers gave Rachel the work of two employees on the basis that they had faith in her design skills.

Rachel gave unchallenged evidence to the tribunal that she was responsible for designing a Superdry range of men’s knitwear. The sales for that range had been falling but her designs increased sales by 63%, and led to further growth in following years. The tribunal found that Rachel was an excellent knitwear designer.

The tribunal was shocked at the complacency of the company’s head of the creative centre, Jo Cottrell. She said the design management team decided on promotions and their promotion criteria removed any risk of bias.

Employment tribunal decisions

Due to her promotion disappointment and how she was treated, she became ill, felt humiliated and resigned.

In the judgment of the three-person tribunal panel, they stated:

But we do find that for the other reasons we have identified, the Claimant (Rachel Sunderland) was treated less favourably. The Claimant was not promoted, saw her workload significantly increased, and was offered minimal and ineffectual assistance to cope with this workload…

“We find that the Respondent did this in significant part because of the Claimant’s age…We do not accept the reasons advanced by the Respondent (Superdry) for not promoting the Claimant (Rachel Sunderland). The Respondent’s criteria for promotion were flawed: they left undefined what key elements of the criteria were and used ambiguous if not positively misleading terminology. We find that the Respondent’s decision-makers – principally Ms Cottrell and Mr Harvey – have sought to use these criteria to justify a refusal to promote the Claimant that does not stand up on its own terms.”


age discrimination constructive dismissal Employment Tribunal Equality Act performance assessment unfair dismissal

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