Constructive dismissal claim fails: genuine performance concerns justified capability process
A Business Development Manager who resigned claiming constructive dismissal due to race discrimination lost his case. The tribunal found Siemens Healthcare Ltd had genuine, evidence-based performance concerns and had not breached the implied term of trust and confidence.
1 min read · Last updated 18 May 2026
Case details
- #constructive-dismissal
- #performance-improvement-plan
- #capability-procedure
- #roundtable-calibration
- #unconscious-bias
- #comparator-evidence
Key facts
- The claimant was employed as a Business Development Manager from 13 June 2016 until his resignation on 17 June 2019.
- The claimant received a 2017 PMP score of 3/10 and was placed on an informal PIP in January 2018.
- The claimant was given a first written warning and formal PIP in December 2018 after a capability hearing.
- The claimant resigned on 17 June 2019, claiming constructive dismissal due to race discrimination and victimisation.
- The tribunal found that the respondent's concerns about the claimant's performance were genuine and evidence-based.
- The tribunal concluded that the claimant was not dismissed and all claims of unfair dismissal, race discrimination, and victimisation failed.
Timeline
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Employment started
The claimant began employment as a Business Development Manager at Siemens Healthcare Ltd.
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2017 PMP meeting
The claimant's 2017 PMP meeting took place, resulting in a TPR of 3/10 and an IPP of 40%.
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Informal PIP started
The claimant was placed on an informal Performance Improvement Plan, initially set to end on 31 March 2018.
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Informal PIP extended
The informal PIP was extended for a month until 20 July 2018, and a PDP was introduced.
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Capability hearing notified
Mr Borley informed the claimant that a capability hearing would be held due to ongoing performance concerns.
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Capability hearing
A capability hearing was held, resulting in a first written warning and a formal PIP.
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Grievance submitted
The claimant submitted a grievance alleging race discrimination and unfair treatment.
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Grievance outcome
The grievance was dismissed by Mr Dand; the claimant appealed.
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Grievance appeal outcome
Ms Suller upheld the original grievance decision, finding no race discrimination.
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Resignation
The claimant resigned on notice, citing constructive dismissal due to race discrimination.
The legal issue
The tribunal had to decide whether the employer's actions in managing the claimant's performance amounted to a fundamental breach of contract, entitling him to resign and claim constructive dismissal, and whether those actions were motivated by race.
The outcome
The tribunal dismissed all claims.
- The claimant was not constructively dismissed because the employer did not breach the implied term of trust and confidence. The performance management process was reasonable and based on genuine concerns.
- The race discrimination and victimisation claims failed because the claimant did not provide evidence that his race was a factor in the employer's decisions. The tribunal accepted the employer's explanations as genuine.
- No compensation was awarded.
Lessons & takeaways
- Employers should ensure performance concerns are documented and supported by evidence before starting a capability process.
- Employees who believe they are being treated unfairly due to race should gather comparator evidence to support their claim.
- A constructive dismissal claim requires a fundamental breach of contract by the employer; a genuine performance process is unlikely to amount to such a breach.
- Tribunals will scrutinise the employer's reasoning for performance decisions, but if they are genuine and evidence-based, the claim is likely to fail.
When performance management leads to resignation
This case shows how a genuine performance improvement process, even one that leads to a written warning, does not automatically give an employee the right to resign and claim constructive dismissal. The claimant, a Business Development Manager with three years' service, was placed on an informal performance improvement plan after a low performance score. When his performance did not improve, he was given a formal warning and a formal PIP. He resigned, alleging that the process was a sham and motivated by race discrimination.
The tribunal carefully examined the evidence and found that the employer's concerns were genuine and based on objective data. The claimant's performance metrics were poor compared to his peers, and the employer had given him support and time to improve. The tribunal accepted that the employer's actions were not a breach of the implied term of trust and confidence, which is the key test for constructive dismissal.
Why the race discrimination claim failed
The claimant argued that he was treated less favourably than white colleagues in similar roles. However, the tribunal found that the comparators he identified were not in materially similar circumstances. The employer provided legitimate, non-discriminatory reasons for the performance management steps, and the tribunal accepted those reasons. The claimant's grievance and appeal had also been properly handled, and the tribunal found no evidence of victimisation.
What this means for similar claims
This case reinforces that employers can manage performance robustly as long as they have genuine concerns and follow a fair process. Employees considering a constructive dismissal claim should be aware that they must show a fundamental breach of contract, not just dissatisfaction with performance management. Race discrimination claims require strong evidence of less favourable treatment, ideally through appropriate comparators.
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