Mr G Marcus v Siemens Healthcare Ltd: 3314527/2019 and 3324932/2019
| Jurisdiction | England & Wales |
| Judgment Date | 10 September 2023 |
| Date | 10 September 2023 |
| Citation | 3314527/2019 and 3324932/2019 |
| Court | Employment Tribunal |
| Published date | 03 October 2023 |
| Subject Matter | Breach of Contract |
Case No: 3314527/2019 and 3324932/2019
1
EMPLOYMENT TRIBUNALS
Claimant: Mr G Marcus
Respondent: Siemens Healthcare Ltd
Heard at: Reading Employment Tribunal
On: 27, 28 February (hybrid) and 1 to 3 March 2023, 14 March 2023
(by CVP) and 15 March 2023 (in chambers)
Before: Employment Judge George
Members: Ms H Edwards (remotely on 28 February 2023)
Ms A Crosby
Representation
Claimant: Mr D Stephenson, counsel
Respondent: Ms L Veale, counsel
RESERVED JUDGMENT
1. The claimant was not dismissed.
2. The claim of unfair dismissal is not well founded and is dismissed.
3. The claims of race discrimination are not well founded and are dismissed.
4. The claims of victimization are not well founded and are dismissed.
REASONS
1. The claim arises out of the claimant’s employment by the respondent as a
Business Development Manager which started on 13 June 2016, was
ongoing at the time of presentation of the first claim form and ended on 16
September 2019 following his resignation on 17 June 2019. The claimant had
been absent on sick leave since his resignation.
2. Following a period of conciliation between 6 March 2019 and 6 April 2019 the
claimant presented his first claim form (Case No: 3314527/2019) on 6 May
2019. Following a further period of conciliation between 5 September and 3
Case No: 3314527/2019 and 3324932/2019
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October 2019, he presented his second claim form on 1 November 2019
(Case No: 3324932/2019). The respondent defends the claims and
presented grounds of response to claim 1 on 21 June 2019 and to claim 2 9
September 2019.
3. We have had the benefit of a joint bundle of documents to which additions
were made at the start of the hearing. That mean that the last page was
numbered 1066 although there were some stroke pages and some blank
pages. Page numbers in these reasons referred to those documents as page
1 to 1066 as the case may be. We took into account those page numbers to
which we were taken. Some of the additions to the bundle were made
following late disclosed documentation by the respondent and there were
contested applications in respect of some of that evidence and for disclosure.
Details of that are set out below. Some of the documents were spreadsheets
of performance reviews or PMPs and we were provided with separate
expanded copies of pages 184 and 192 for ease of reading.
4. The claims were case managed at a preliminary hearing conducted by
employment Judge Finlay on 25 March 2020 (page 98) when the claims were
listed for hearing at which issues relevant to liability only would be
determined. The original listing was for six days to take place in May and
June 2021. The record of hearing sent to the parties on 12 April 2020 includes
a draft list of issues which had been agreed subject to 2 points.
5. Those are referred to in paragraph (6) to (8) of the learne judge’s order. The
first was that a claim of indirect race discrimination appeared to have been
overlooked when producing the agreed list of issues and the second was a
breach of contract complaint the details of which did not appear to be clear
at the time of that hearing. It was clarified by Mr Stevenson at the start of the
hearing before us that the list of issues did not need amendment to
incorporate indirect race discrimination or breach of contract but that the
issues that we needed to decide remained those that appear in the bundle
starting at page 103. The heads of claim are race discrimination (including
alleged constructive dismissal), victimization and unfair constructive
dismissal contrary to s.94 Employment Rights Act 1996 (hereafter the ERA).
The claimant describes himself as black British of Afro-Caribbean origin.
6. The claimant adopted in evidence a witness statement of 336 paragraphs
and was cross examined upon it. The respondent relied on the evidence of
five witnesses: Mark Borley - Head of Business Development for Enterprise
Services in GB and Ireland; Nancy West - who had a number of roles at the
relevant period including as Head of Enterprise Services both for GB and
Ireland and for Western European & Western Africa; Marlen Suller - Zone
Business Manager (who heard the claimant’s grievance appeal); Steve
Clarke - Senior Business Development Manager and Charlotte Allen
(formerly known as Hewett) - Customer Proposal Project Lead.
7. Mrs West was unable on medical grounds to attend the Tribunal and be cross
examined on her witness statement. We admitted it into evidence in
circumstances which are set out below. Otherwise all witnesses gave oral
evidence. Mr Clarke was unable to attend in person and the hearing was
converted to a hybrid hearing for him to attend remotely on Day 4 and Day 5.
Case No: 3314527/2019 and 3324932/2019
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The hearing was also converted to a hybrid hearing on Day 2 and started an
hour late in order that one of the non-legal members, Ms Edwards, could
attend a medical appointment.
8. The Tribunal heard applications for case management orders which were
determined for reasons given orally and which were requested in writing at
the end of the hearing. They are provided below. The Tribunal members
were unavailable to sit for the full six days that had originally been listed and
it was not possible with the number of witnesses, the size of the documentary
evidence and the preliminary applications to condense the timetable into five
days including deliberation and judgment. The Tribunal decided that the
importance of the issues to the parties and the amount of evidence to be
considered meant that it would not be just to the parties to reduce the time
available to the parties for evidence and submissions in order to complete it
within 5 days. The Tribunal agreed to schedule additional time for discussion
and to reserve judgment.
9. The original intention was to hear brief oral submissions at the end of Day 5
but this proved impossible while doing justice to the complexity of the issues.
At the start of Day 5 counsel asked to address the Tribunal in the absence of
the parties and witnesses. Mr Stephenson informed the Tribunal that, as a
result of evidence given the previous day by Mr Borley he was instructed to
make an application to amend the claim. Ms Veale argued that we should
not entertain the application because of the likely impact on the rest of the
timetable. By that point, cross-examination of the respondent’s witnesses
having taken longer than expected, there remained about 2 hours scheduled
for the remaining oral evidence. We took time to consider but decided that,
since the claimant was entitled to apply to amend his claim at any stage up
to the delivery of judgment, any application needed to be decided at the
soonest convenient point. The amendment application was agreed not to
affect the questions to be asked of the remaining 2 witnesses whose
evidence was completed. We then heard and refused the application to
amend, for reasons which are set out in writing below. By that time it was
14.10 and there had not yet been a lunch break. Ms Veale, completed her
submissions by 16.00. By 16.30 it was clear that submissions could not fairly
be completed by 17.00.
10. The case was therefore adjourned part heard. Directions were made for
exchange of written submissions. The claimant’s written submissions are
referred to as CWS and the respondent’s written submissions are referred to
as RWS. The representatives also attended and give brief oral submissions
in response at a video hearing which took place at the start of two days that
had been set aside for Tribunal deliberations. Judgement was reserved.
11. A Cast List and list of abbreviations was agreed on 1 March 2023 and there
was an agreed Chronology. We have had reference to but do not repeat the
Cast List and Chronology. In order that these reasons might be understood
we replicate the list of abbreviations here. There is one other abbreviation
found in these reasons: SWOT which stands for Strengths, Weaknesses,
Opportunities and Threats (see the claimant’s self-development analysis on
page 221).
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