Mr G Marcus v Siemens Healthcare Ltd — 2020

The claimant worked as a Business Development Manager from 13 June 2016 and resigned on 17 June 2019. The tribunal found he was not dismissed, and therefore the unfair dismissal claim failed. It also rejected the claimant's case that the respondent's handling of his employment amounted to race discrimination or victimisation.

The tribunal accepted that the role required prospecting, bid work, customer visibility, responsiveness, and effective administration. It found that the claimant's 2017 and 2018 PMPs, the informal PIP from January 2018, the later PDP, and the formal capability process were all based on contemporaneous performance concerns about responsiveness, diary management, visibility, bid contribution, and related development needs. It rejected the claimant's case that his 2017 scores were substantially downgraded at Roundtable, finding that Mrs West's ratings were already in place and that the claimant had himself recorded only partial achievement of several targets.

On race discrimination, the tribunal rejected the allegation that the performance management steps, comments about outside business interests, the request for the claimant to take sole responsibility for the Gloucester radiology bid, the Germany training comment, the UHB request for information, the issue about access to Sarah Waiton, and other complained-of matters were motivated by race. It found the respondent managers were reacting to objective evidence of performance issues and that a white employee in materially similar circumstances would have been treated the same. It also found no evidential basis for the suggestion that unconscious bias or racial stereotyping explained the decisions.

The tribunal refused the respondent's late-disclosed notebook notes and did not draw adverse inferences from their absence, but it found the contemporaneous emails, PMP forms, PIP notes, grievance material, and witness evidence sufficient to determine the case. It also held that the claimant's grievance of 3 February 2019 was a protected act, but the alleged detriments were not made out, or were not shown to be because of that grievance. The grievance and appeal were found to have been investigated and dealt with seriously.

On constructive dismissal, the tribunal held that the respondent had not acted in a way calculated or likely to destroy mutual trust and confidence. It accepted that Mrs West should have been more transparent earlier about her concerns, but found the respondent then took a supportive approach, including an extended informal PIP, coaching, shadowing, and a PDP. No claim succeeded and no monetary award was made.