Skip to content
laws.sgby aturio
Grounds publishedDecided 18 Oct 2022
Contents

General Division of the High Court

Kallivalap Praveen Nair v Glaxo smithkline Consumer Healthcare Pte Ltd

[2022] SGHC 261Case no. Suit No 171 of 2021

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Grounds of decision

Official text from eLitigation

  1. Introduction

  2. [1] The plaintiff, Mr Kallivalap Praveen Nair (“Praveen”), brings this action against his former employer, Glaxosmithkline Consumer Healthcare Pte Ltd (“GSK”), for breach of his employment agreement, on the grounds that GSK discriminated against him and caused him to lose the opportunity to secure roles in GSK and another company, Unilever.

  3. Factual background

  4. [2] Praveen was previously employed by GSK Consumer Healthcare Limited (“GSK India”) as its Head of Expert Sales and Marketing for the Indian subcontinent. In 2018, Praveen joined GSK as an employee. GSK is a company incorporated in Singapore. It serves as the regional headquarters for consumer healthcare operations of the group (“GlaxoSmithKline”).

  5. [3] On or around 16 May 2018, Praveen signed a Letter of Appointment (“LOA”) with GSK, taking on the role of Global Expert Director for Nutrition and Digestive Health business (“NDH”). In June 2018, Praveen relocated to Singapore with his family.

  6. [4] In or around November or December 2018, GlaxoSmithKline announced the sale of its Nutrition business to Unilever (“Unilever Deal”). The Unilever Deal was completed around April 2020. In or around December 2018, GlaxoSmithKline announced its acquisition of Pfizer’s consumer business (“Pfizer Deal”). The Pfizer Deal was completed around August 2019.

  7. [5] Sometime in late May to June 2019, Praveen interacted with Unilever personnel to discuss opportunities at Unilever. He was ultimately not selected for any of the roles with Unilever.

  8. [6] On 11 June 2019, GSK announced through an email sent on behalf of Ms Tamara Rogers (“Tamara”), who was GlaxoSmithKline’s designate Chief Marketing Officer at the material time, that a new Global Head of Expert Marketing role had been created and that Ms Tess Player (“Tess”) had been appointed to that role. This was regarded as a “LT-1” role, ie, “Leadership Team minus one”, which meant it was one level below Leadership Team roles. Praveen was not invited to apply for that role.

  9. [7] From around June 2019 to September 2019, Praveen took part in GSK’s assessment and selection (“A&S”) process for new Global Expert Category “LT-2” roles (ie, Leadership Team minus two, which meant one level below LT-1 roles) that were created following GlaxoSmithKline’s restructuring. Between August and November 2019, GSK announced the appointments for the LT-2 roles that Praveen applied for. He was not selected for these roles.

  10. [8] On or around 2 December 2019, Mr Rick Sheppard (“Rick”), who was Praveen’s line manager, informed him that there were no roles available for him and that he would be made redundant. A notice of redundancy was issued to Praveen in January 2020 which stated that his last day of employment would be 14 April 2020. Praveen sought to extend his last day of employment to 30 September 2020. GSK subsequently extended Praveen’s last day of employment to 30 June 2020.

  11. [9] In this suit, Praveen claims against GSK for damages in the amount of $1,239,158.91 for breaches of his employment agreement with GSK (“EA”), which he claims resulted in the loss of his opportunity to land a role with Unilever, a new LT-1 role in GSK and LT-2 roles in GSK. Praveen also claims that GSK is liable to him for the shortfall in his severance payment of $148,809.83, and for the sum of $49,503.21 which he claimed was wrongfully withheld by GSK from his salary.

  12. [10] GSK counterclaims for the sum of $95,211.87, which it says was paid to Praveen by mistake.

  13. Whether the Employment Agreement expressly imposes an obligation on GSK to comply with the Policies

  14. [11] Praveen claims that GSK breached its policies (“the Policies”), which are defined at cl 5.2 of the LOA. These include the following:

  15. [12] The first issue which the plaintiff has to address, is whether the EA expressly imposes an obligation on GSK to comply with the Policies.

  16. [13] The plaintiff submits that cll 5.3 and 11.1 of the LOA expressly impose such an obligation on GSK. The relevant clauses are cll 5.2, 5.3 and 11.1 of the LOA. They state:

  17. [14] On a plain reading, cl 5.2 only obliges Praveen, the employee, to comply with the Polices. It does not oblige GSK, the employer, to comply with the Policies. In other words, under cl 5.2, the Policies are incorporated only to the extent that they impose obligations on Praveen as the employee.

  18. [15] Clause 5.3 is clearly intended to be read together with cl 5.2, as it begins with the phrase “In addition” and it refers to “Policies”, which was defined in cl 5.2. The phrase “Policies prevailing from time to time” that is mentioned in cl 5.3 must hence be in reference to “Policies” as mentioned in cl 5.2. Consequently, under cl 5.3, the Policies that prevail over conflicting or inconsistent LOA terms must refer to Policies that impose obligations on Praveen as the employee, and not Policies that impose obligations on GSK as the employer.

  19. [16] In a similar vein, the opening line of cl 11.1 refers to the LOA and the documents “expressly referenced herein”. The Policies are expressly referenced in cl 5.2, which as stated above, plainly oblige only the employee, Praveen, to comply with the Policies, and not the employer, GSK. Consequently, undercl 11.1, the Policies that prevail over conflicting or inconsistent LOA terms must refer to Policies that impose obligations on Praveen as the employee, and not Policies that impose obligations on GSK as the employer.

  20. [17] I hence find that the EA does not expressly impose an obligation on GSK to comply with the Policies.

  21. Whether there is an implied term of mutual trust and confidence

  22. [18] The plaintiff alternatively submits that the EA contains an implied term of mutual trust and confidence (“ITMTC”), the content of which includes compliance by Praveen and GSK with all the Policies, known or unknown . The plaintiff submits that the ITMTC is implied in law or on the facts.

  23. Implied on the facts

  24. [19] I will first examine whether there is a basis for an ITMTC, as pleaded, to be implied on the facts here.

  25. [20] The test for implying a term in fact was set out in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 (“Sembcorp”) and consists of three steps:

  26. (a) First, the court will ascertain how the gap in the contract arose. The implied term will be considered only if the court discerns that the gap arose because the parties did not contemplate the gap.

  27. (c) Third, the court will consider whether the specific term to be implied was one which the parties, having regard to the need for business efficacy, would have responded “Oh, of course!” had it been put to them at time of the contract. If it is not possible to find such a clear response, then, the gap persists, and the consequence of that gap ensues.

  28. [21] The plaintiff submits that the ITMTC as pleaded is necessary to give efficacy to the EA because GSK’s employees must be able to expect GSK’s compliance with its own policies, which addresses key aspects of the employment relationship. Praveen cites as an example of this, GSK’s policies providing for key components of employees’ remuneration. However, employment contracts generally contain specific provisions that deal with the remuneration of employees. This is also the case for Praveen. Clauses 2.1, 2.2 and 2.3 of the LOA explicitly set out his remuneration and other entitlements. It could not be said that the ITMTC as pleaded is necessary to ensure proper remuneration. More generally, even if GSK employees expect GSK to comply with its own policies, that does not make it a business or commercial necessity such that it should be contractually part of the EA. Therefore, I do not find the second step of the Sembcorp test, ie, business or commercial necessity, to be made out.

  29. [22] Neither is the third step of the Sembcorp test met. As applied to this case, this requires that the ITMTC as pleaded is one to which the parties, having regard to the need for business efficacy, would have responded “Oh, of course!” had it been put to them at time of the contract.

  30. [23] Having expressly limited the obligation of complying with Policies to be on the employee and not the entity, it is not apparent that GSK as an entity would have said of “Oh, of course!” if it was put to it that the ITMTC as pleaded was part of the contract.

  31. [24] The plaintiff submits that this test is satisfied as every witness confirmed that GSK’s employees had the right to expect GSK to comply with its policies. However, Tamara, Tess and Mr Jayant Kumar Singh (who was one of Praveen’s line managers) (“Jayant”) all testified, when asked, that they did not know what an ITMTC was. In addition, they, along with Rick Sheppard (“Rick”) (Praveen’s line manager after Jayant), did not testify that they saw GSK’s compliance with the Policies as part of GSK’s contractual obligations to its employees. Their evidence is summarised as follows:

  32. (a) Rick saw a nuanced distinction between trust in a company and a legal obligation. He believed that the company’s legal obligations are set out in the employment contract, but that the company will also follow its values and expectations to look at the employment contract in the right light. The plaintiff submits that Rick testified that if GSK did not comply with its policies, the aggrieved employee would have a right to bring his claim to court. However, this is a misinterpretation of Rick’s testimony. The relevant portion of the transcript that the Plaintiff relies on is set out below:

  33. As evident from the above, all that Rick testified to was that in the particular circumstances described by the plaintiff, he thought that an employee should have a right of redress. Rick was not asked the more specific and relevant question – did Rick consider GSK to be contractually bound to follow its Policies? There is hence no evidence from Rick to that.

  34. (b) Tamara said that GSK employees had to follow the Code of Conduct, but the rules in the Code of Conduct were not law. The Code of Conduct applied to everyone in GSK and if an employee failed to comply, there may be disciplinary action. She considered an employee contractually bound by the Policies. She did not know if GSK as an entity would be contractually bound to its employees to follow the Policies.

  35. (c) Jayant said he did not have a clear view on whether his employment agreement contractually bound GSK to follow the Policies.

  36. (d) The plaintiff submitted that Tess testified that she would expect GSK to be contractually bound by the Policies. Again, this is not supported by the transcript. What Tess said was that she did not know if the Policies were legally binding on GSK.

  37. [25] While these employees were senior employees within GSK, their seniority alone does not mean that they represent the will of the company. Their understanding of the terms of the Employment Contract is not necessarily representative of GSK’s understanding. Furthermore, even taking Praveen’s case at its highest, these witnesses did not know in the first place what an ITMTC was, and they also did not clearly consider GSK to be contractually bound by its Policies. Therefore, I find it difficult to conclude that they would have said “Oh of course!” if it was suggested to them that GSK was contractually bound by the ITMTC as pleaded. Neither is there any evidence before the court to conclude that GSK as an entity would have also said “Oh of course” to this suggestion. That GSK expressly limited the obligation of compliance with the Policies to employees in cl 5.2 of the EA, suggests the contrary.

  38. [26] I hence find that neither step 2 nor step 3 of the Sembcorp test is satisfied on the evidence, and that the plaintiff has not proven that the ITMTC is implied in fact.

  39. Implied in law

  40. [27] I will next examine if an ITMTC as pleaded should be implied in law. GSK makes a preliminary argument that the ITMTC cannot be part of the EA because it contradicts the express terms of the EA. However, while cl 5.2 of the LOA places an obligation on the employee to comply with the Policies, and there is no term placing an obligation on the employer GSK to comply with the Policies, there is no express term in the LOA precluding the inclusion of the ITMTC as pleaded.

  41. [28] The plaintiff relies on decisions such as Cheah Peng Hock v Luzhou Bio-Chem Technology Ltd [2013] 2 SLR 577 (“Cheah Peng Hock”) to support its position. There, the High Court held that unless there are express terms to the contrary or the context implied otherwise, an implied term of mutual trust and confidence and fidelity, is implied by law into a contract of employment under Singapore law: at [59]. Subsequent High Court decisions have also recognized the existence of the ITMTC in Singapore law.

  42. [29] GSK relies on the observations of the Appellate Division of the High Court in Dong Wei v Shell Eastern Trading (Pte) Ltd and another [2022] 1 SLR 1318 ("Dong Wei") to submit that the issue of whether ITMTC is part of Singapore law is still an open question. In Dong Wei, the Appellate Division noted at [73] that the Court of Appeal in Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2014] 4 SLR 357 ("Wee Kim San") did not formally endorse the existence of the ITMTC, unlike certain High Court decisions. The Court of Appeal in Wee Kim San was cognisant that Commonwealth Bank of Australia v Barker (2013) 214 FCR 450 (“Barker (FC)”) – then in the Federal Court of Australia (“FCA”) – was on appeal to the High Court of Australia (“HCA”): at [30]. In a subsequent Court of Appeal decision in The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd [2015] 3 SLR 695 (“One Suites”), the Court of Appeal expressly noted that Wee Kim San left open the position in Singapore on the existence of the implied term of mutual trust and confidence: at [44]. The court in Dong Wei thus observed at [82]:

  43. [30] GSK also refers to the decision of the HCA in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 (“Barker (HC)”) to support its position that the ITMTC should not be recognized under Singapore law. The issue of whether the ITMTC should be implied by law in Australia, was considered extensively by the HCA in Barker (HC). The factual matrix in Barker (HC) is similar to the present case in three aspects: (a) Praveen similarly argues that GSK must be bound by its own Policies; (b) Praveen’s pleaded case is that his claim is not based on the act of dismissal but on the ground that he has been unfairly treated in the selection process for Unilever, LT-1 and LT-2 roles; and (c) Praveen is also claiming damages for the loss of chance of obtaining those roles.

  44. [31] I begin my analysis of the parties’ submissions on whether the ITMTC as pleaded should be implied in law, by observing that the content of the ITMTC that the plaintiff seeks to ascribe to the ITMTC, namely that GSK as the employer is contractually bound to comply with the Policies, is not something that has been held to be part of the ITMTC. When asked, counsel for the plaintiff confirmed to the court that he has not found any precedent anywhere, where an ITMTC of the pleaded content, that a company has to comply with its policies, has been accepted.

  45. [32] The court in Cheah Peng Hock at [56] set out examples of the application of an ITMTC. These include:

  46. (a) a duty not to act in a corrupt manner which would clearly undermine the employee’s future job prospects (Malik v BCCI [1998] AC 20) (“Malik”);

  47. [33] It was argued before the HCA in Barker (HC) that the range of duties imposed by the ITMTC introduces inherent uncertainties. The HCA in Barker (HC) affirmed Jessup J’s dissent in Barker (FC) that the ITMTC will have “the potential to act as a Trojan horse in the sense of revealing only after the event the specific prohibitions which it imports into the contract”: at [117]. I note that the court in Cheah Peng Hock was also cognizant of the wide range of duties imposed under the ITMTC at [56], but nevertheless found that the ITMTC exists under Singapore law.

  48. [34] However, in my view, the tension between Barker (HC)’s concerns as to the uncertainties associated with the ITMTC as a doctrine and Cheah Peng Hock’s recognition of the ITMC, is not the nub of the issue in this case.

  49. [35] This is because the issue before this court is not whether the ITMTC, in the form that has been applied in previous cases, is part of Singapore law, in the light of the analysis in Barker (HC). The ITMTC as pleaded is very different from the formulation of the ITMTC in Malik that “[p]arties shall not engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages”. Rather, the issue is this: even assuming that the ITMTC is part of Singapore law, should the content of the ITMTC include a contractual duty on the part of the employer to comply with its internal policies? Counsel for the plaintiff accepts that this would indeed be the inquiry before this court, and that even if this court accepts that ITMTC is part of Singapore law, the court will have to find that an ITMTC of the pleaded content is part of Singapore law.

  50. [36] To sharpen the inquiry before this court, the substance of what the plaintiff is contending is no different in terms of the outcome, if his submission was that there should be “an implied term in the EA that GSK should comply with its policies”, rather than “an implied term of mutual trust and confidence in the EA that GSK should comply with its policies”.

  51. [38] The doctrine of implication of terms in law inevitably raises some degree of uncertainty given the broadness of the criteria utilized to imply such terms: Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 4 SLR(R) 769 at [90]. Therefore, courts must be cautious in determining whether to imply certain terms in law and carefully consider the degree of uncertainty that such terms may introduce. Further caution should be exercised when the content of the implied term involves a concept which is itself controversial: Ng Giap Hon v Westcomb Securities Pte Ltd [2009] 3 SLR(R) 518 at [46].

  52. [39] The uncertainty here takes place at two levels, first in respect of GSK, and second, in respect of other companies.

  53. [40] First, in respect of GSK, not all the content or clauses in GSK’s company policies were traversed in the course of the trial. Only the Policies and particular clauses of the Policies that were relied on for the plaintiff’s action were mentioned. There remains a large body of GSK’s documents that are neither identified nor discussed (‘the unknown GSK documents”), the legal status of which remains unclear by the end of the trial.

  54. [41] Hence, it could not be said with certainty which of the unknown GSK documents should rightly be regarded as part of GSK’s policies or contractual obligations. This is particularly since, even for purposes of this suit, there are documents which are titled as “Guidance” or “Best Practices”, but which the plaintiff submits are nevertheless contractually binding policies, despite their wording on the face of the documents.

  55. [42] The plaintiff submits that GSK should still be bound by the unknown GSK documents since it knows what these other documents are. The plaintiff argues that since it has been pleaded that under cl 5.2 of the LOA, all GSK policies are part of the EA, then the onus is on GSK to identify which of the remaining unknown policies are not to be regarded as contractual obligations.

  56. [43] With respect, I have several difficulties with this submission for the following reasons:

  57. (a) First, as set out above, cl 5.2 only binds the employee and not GSK. There is no express clause that incorporates a contractual obligation on GSK to follow all its policies. Indeed, it is because there is no express contractual obligation, that there is a need to consider whether there is an ITMTC. There is hence no place to rely on cl 5.2 of the LOA, in relation to this issue of uncertainty in the pleaded ITMTC. The uncertainty over the universe of unknown policies that should be subject to the pleaded ITMTC remains to be addressed.

  58. (b) Second, while the plaintiff submits that there is no uncertainty because GSK would know which policies are binding, the position taken by GSK in this case is that it disputes that there are any policy documents that are contractually binding on it in the first place. Therefore, it is no answer for the plaintiff to say that GSK would be able to identify these unknown GSK documents. Most certainly, an employee would also not know what is the realm of unknown GSK documents that are regarded as contractually binding.

  59. (c) Third, there could be many other unknown GSK documents for which it is uncertain if such documents are policy documents and if they bind GSK. This is especially when the plaintiff’s position during the trial was that townhall communications can also be classified as policies. It would be overly onerous to expect GSK to identify all such potential documents in the course of this suit and clarify which of such documents are policies, and which of these policies are regarded as binding. This is especially when many of these documents may not be or are unlikely to be related to this suit, since they were not relied on by the plaintiff.

  60. [46] The plaintiff acknowledges that there are aspirational statements in the Policies and submits that aspirational statements should be treated as obligations for GSK to use reasonable endeavours to achieve those standards. Where, however, there are statements in the Policies that are phrased in mandatory language, those should be treated as binding even though there is an aspirational quality. The plaintiff cites as an example, a line from the Equality Policy which states that “managers and anyone with managerial responsibilities must … [d]emonstrate equal and inclusive treatment of employees” and submits that since the phrase “must” was used, it should be regarded as a contractual obligation. However, the very same page of that document also states that managers must “[c]reate an environment where employees are engaged in challenging work that matches their talents and increases their skills”. Whether there is such an environment would be highly subjective. What constitutes a breach would be highly uncertain. It is not likely that GSK would regard such a phrase as contractually binding, even though the word “must” was used. Words such as “must” or ‘should” can also be used as exhortations, particularly in aspirational documents, and need not necessarily indicate an intention to impose a contractual obligation.

  61. [47] There is a separate level of uncertainty with the pleaded ITMTC, and that is in relation to other companies or entities, whether in the private sector, public sector or charity sector. There is no evidence before the court of the content that other companies put into their internal policies, and whether it would be appropriate for such policies to be treated as part of those companies’ contractual obligations with their employees, which is the inevitable outcome if the plaintiff is correct in submitting that the ITMTC as pleaded is implied by law.

  62. [48] The plaintiff seeks to go around this difficulty by submitting that the ITMTC as pleaded need not go that far as to affect other companies. This is because it was held in Cheah Peng Hock at [60] that the content of ITMTC can vary greatly depending on the facts of each case. The plaintiff hence submits that a finding that the pleaded ITMTC is implied by law need not affect other companies.

  63. [49] However, the plaintiff also accepts that Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR(R) 927 (“Forefront”) was correct in holding at [42] that “once a term has been implied [in law], such a term will be implied in all future contracts of that particular type … [T]he central idea is clear: it is that the term implied is implied in a general way for all specific contracts that come within the purview of a broader umbrella category of contracts” [emphasis in original]. The EA does not appear to be particularly unique. Following the principle set out in Forefront, at the least, a company that imposes a contractual obligation on its employees to comply with company policies, would similarly face an implied term that the company too would be contractually bound by such policies. Moreover, counsel for the plaintiff also accepts that if the pleaded ITMTC is upheld on the basis of it being implied by law, then such a decision would have precedential value, and other companies would have to be more precise if they do not want to be bound by their internal policies in future. In other words, there would be impact on other companies.

  64. [51] This brings me to another issue, which is whether a court hearing involving a private dispute between a company and its employee, is the best modality to decide if the internal policies of other companies, should be part of their contractual obligations with their employees. In Barker (HC), the HCA observed that the ITMTC would “intrude a common law policy choice of broad and uncertain scope into an area of frequent, detailed and often contentious legislative activity”: at [118]. Our courts have also expressed similar concerns about such intrusion and have held that it “is impermissible for the courts to arrogate to themselves legislative powers” or become “mini-legislatures”: Lim Meng Suang and another v Attorney-General and another appeal and another matter [2015] 1 SLR 26 (“Lim Meng Suang”) at [77]. This is because the courts have no mandate to create or amend laws in a manner which permits recourse to extra-legal policy factors as well as considerations. The jurisdiction as well as the power to do so lie exclusively within the sphere of the legislature: Lim Meng Suang at [77]. At the same time, our courts have been able to make advancements in areas of common law, which affect a polarity of parties, for example with respect to the test on medical negligence in Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] 2 SLR 492.

  65. [52] In my view, the issue here is not about the respective capabilities or the proper reach of the different institutions. Rather, it is a question of whether the wider impact on other companies that flows from the plaintiff’s submission on the pleaded ITMTC, is one that is best arrived at through the process of a private employment dispute between two parties, ie, the plaintiff and GSK.

  66. [53] The plaintiff’s submission is a very broad and far reaching one.

  67. [55] For the above reasons, I find that even on the assumption that the ITMTC exists in Singapore, the ITMTC as pleaded by the plaintiff, ie, that a company is contractually bound to comply with all its policies, is not part of Singapore law.

  68. [56] In summary, I observe that while the plaintiff frames his case as being based on the ITMTC, there is no precedent for an ITMTC of the content that he seeks to ascribe. While positioning the claim as one of an ITMTC may allow the plaintiff to tap into the jurisprudence accepting ITMTC, one should not lose sight that the fundamental question that the plaintiff’s submission raises is not whether an ITMTC exists in Singapore law, but whether it should be implied in law (through an ITMTC) that companies are contractually bound to comply with all their policies. For the reasons above, I find that such a term would be too uncertain. I also do not regard an employment dispute between two private parties as being the appropriate forum for determining that companies elsewhere are similarly contractually bound to comply with all their policies.

  69. [57] As this is a threshold question for the plaintiff, my finding that there is no ITMTC as pleaded that is implied in law, means that the plaintiff’s case would be dismissed on this basis alone.

  70. [58] For completeness, I nevertheless proceed to consider if there are breaches of the EA, assuming that an ITMTC as pleaded, is implied by law in Singapore. As set out in my assessment below, I find that the facts do not bear out a claim based directly on the ITMTC as pleaded, even if it existed.

  71. Praveen’s omission from the May 2019 GSK list of personnel eligible for assessment for Unilever roles

  72. Parties’ position

  73. [59] The plaintiff submits that GSK’s omission of his name from the May 2019 GSK list of personnel (“the List”) that was provided to Unilever, is a breach of the EA, particularly the principles of equality in the Code of Conduct and the Equality Policy.

  74. [60] GSK personnel who were included in the List underwent formal assessment by Unilever including evaluation and screening of their curriculum vitae, psychometric assessment profiling as well as formal interviews with Unilever business leaders and human resources (“HR”). As Praveen was left out from the List, he did not undergo any of these assessments. Praveen argues that he would have been selected by Unilever if he were on the List.

  75. [61] GSK submits that the Code of Conduct and Equality Policy do not impose any obligation on GSK to include Praveen in the List. Praveen was not automatically eligible for a transfer to Unilever because only employees who were solely supporting the Nutrition business and based in India were automatically eligible. Praveen did not solely support the Nutrition business.

  76. [62] Despite the fact that Praveen was not automatically eligible for a transfer from GSK to Unilever, attempts were made to put him up for consideration for a transfer to Unilever. He was also invited to several interviews with Unilever. However, the final decision as to who Unilever wish to employ lay with Unilever.

  77. My decision

  78. [63] The plaintiff submits that GSK’s explanation for how the List was constucted (ie, that the List only included employees solely supporting the Nutrition business) is false, as there were GSK personnel who handled leadership responsibilities for both the Nutrition and Digestive Health businesses in the List. GSK was not able to respond directly to this. GSK explained that the persons responsible for the Unilever roles, namely Karen Stahl (“Karen”), GSK’s Global Categories Human Resource Lead, and Nikhila Krishnan, had left the company and attempts to receive the documents from various sources were not fruitful. This is not a wholly satisfactory explanation.

  79. [64] It does not however, shift the balance of probabilities in Praveen’s favor on this issue, when the totality of the evidence is taken into consideration.

  80. [65] The correspondence shows that even though Praveen was excluded from the List, GSK nevertheless put him in touch with Unilever for consideration for a role there:

  81. (a) On 17 April 2019, Praveen sent an email to Karen stating, “Really appreciate your having taken the time today to walk me through your perspective on the Unilever opportunity. As discussed, please find attached my resume for further action. Like mentioned, this is still exploratory and my decision will depend as much on the responses I get for the following queries, as also on the priorities of the family”. Praveen then listed four questions to clarify with Unilever.

  82. (b) On the same day, Karen forwarded Praveen’s CV to Rahul Kapoor (“Rahul”), Arun Sehgal and Jayant. She stated, “Both Jayant and I have had discussions with Praveen about exploring opportunities with [Unilever]. He is open to explore opportunities with [Unilever] with some questions outlined below”.

  83. (c) Rahul replied stating that, “As we had shared with you, [w]e have already sent info required to [Unilever] last week. I was in their office yesterday & we did not discuss [Praveen] since we were not sure what our position is. Let me see if anything can be done now. Will let you know. As already discussed, [Praveen] is out of scope of this deal”.

  84. (d) Karen replied, “I was very aware of your timelines but was waiting for [the plaintiff] and it was important we had the right discussions with him. We are fully aware that [Praveen] is out of scope as is he”.

  85. (e) Rahul then asked Karen what the plaintiff’s current grade is, to which Karen replied that she can confirm he is a “Grade 4”.

  86. (f) On 22 April 2019, Rahul messaged Karen stating that, “[Unilever] is happy to have a conversation with [Praveen], Krishnan ([Unilever] Integration lead) can have this call/Skype on Wednesday (9-945 India time). The questions from [Praveen] had been shared with [Unilever]. Can you please confirm so that we can go back to them”.

  87. (g) On 26 April 2019, Praveen messaged Karen stating that he finished his interaction with Krishnan and that Krishnan requested him to meet with Umesh Shah, the Executive Vice President for Unilever Global based in Singapore.

  88. (h) On 30 April 2019, Praveen messaged Karen stating that his situation seemed positive and that he had received the answers to some of his earlier questions. He also said, “As discussed, I am approaching this with an open mind and shall decide in consultation with Jayant.”

  89. (i) On 20 May 2019, Praveen sent a WhatsApp (“WA”) message to Jayant stating that he had a good call with the Unilever folks and that “they sound eager about Expert and are ambitious with the portfolio… They may not have a set Expert role, but are in the process of designing the role itself.” He also stated, “like you mentioned, it is nice to be a beacon so long as you know who is going to hold it next.”

  90. (j) On 27 May 2019, Rahul messaged Karen stating, “On [Praveen], we have got confirmation that HUL/Unilever currently doesn’t have a role which matches his experience and skill profile. So it can be shared with [Praveen].”

  91. [66] The above correspondence shows three things. First, as of 17 April 2019, Praveen was not completely decided on whether to be considered for a role in Unilever. Second, even though Praveen was not on the List, GSK put him in touch with Unilever for their consideration of him and Praveen did meet with Unilever personnel. Third, it was not GSK that declined to offer Praveen a role in Unilever. It was Unilever that subsequently decided not to offer Praveen a job. Praveen himself acknowledged to Jayant in their correspondence that Unilever did not have a set Expert role, which was his area of expertise: see above at [65(i)].

  92. [67] The plaintiff initially argued that Praveen’s exclusion from the List prejudiced him, as all those that were on the List were offered roles. I note that this position was adjusted subsequently, when the plaintiff submitted instead that it is the undisputed evidence of both Praveen and Prateek Jain (“Prateek”) that “almost all the people on the list obtained roles in Unilever” [emphasis added]. Prateek is a former GSK employee who held a leadership role, who was transferred to Unilever. He appeared as a witness for Praveen. On the plaintiff’s evidence then, being on the List did not automatically result in a role with Unilever. That being the case, it is difficult for the plaintiff to submit that the mere exclusion of Praveen from the List resulted in him being unable to secure a role with Unilever. More fundamentally, there is no evidence that Unilever, as the party taking over the business, was unable to exercise its discretion on what roles it needed and who to offer them to, and instead had to offer roles to anyone who was on the List put up by GSK.

  93. [68] Praveen also acknowledged that when he does recruitment, he would take the best person for the job, regardless of whether that person was on some initial list. Prateek testified that Unilever would have to make its own assessment as to who it wishes to employ for its senior roles.

  94. [69] Praveen initially explained that he was not offered a role by Unilever because his area of strength was Expert Marketing, in particular marketing to pharmaceutical professionals (compared with consumer marketing) and Unilever did not have roles for Expert Marketing. If that was so, then GSK cannot be faulted for Unilever’s decision not to create roles for Expert Marketing.

  95. [70] Praveen subsequently explained that Unilever did have roles for Expert Marketing but did not offer him a role because he was not on the List. Leaving aside that this explanation contradicted what he had earlier said on the stand, this does not explain why the exclusion of Praveen from the List would have been determinative for Unilever.

  96. [71] As Praveen had acknowledged, a recruiter would choose the best person for the job, regardless of whether that person was on an initial list. If Unilever did need people for Expert Marketing roles, there is no logical reason, and certainly no reason that has been placed before the court, as to why Unilever would choose not to take Praveen if he was suitable for a role Unilever required, even if he was not on the List. This is particularly so when Unilever’s interest in the Unilever deal was not just the purchase of the Nutrition business but also the people and their expertise. Prateek testified to that effect: “[a]s part of the Unilever Deal, GSK started to look into which personnel would be transferred to Unilever as the latter would not simply be purchasing the Nutrition business, which was around 45% of the NDH business, but more importantly, the people and their expertise.”

  97. [72] Examining the evidence in totality, I find that GSK did not breach the EA, even if it contained a contractual obligation on the part of GSK to abide by the Code of Conduct and Equality Policy, by excluding Praveen from the List for consideration by Unilever.

  98. GSK’s failure to disclose the creation of the new LT-1 role to Praveen and the appointment of Tess without giving Praveen opportunity to apply

  99. Parties’ position

  100. [73] The plaintiff submits that GSK’s failure to disclose the creation of the LT-1 role to Praveen and the appointment of Tess to the LT-1 role without giving Praveen an opportunity to apply for the role is a breach of the EA, particularly: (a) GSK’s “LT-1 & 2 A&S principles, process and proposed timelines”; (b) GSK’s communications to the attendees of the 29 May 2019 and June 2019 town hall; (c) the June 2019 Leadership Communication Pack (“LCP”); (d) the Code of Conduct; and (e) the Equality Policy.

  101. [74] The plaintiff submits that Tamara breached GSK’s policies by failing to adhere to the LT-1 A&S policies. The plaintiff challenges GSK’s explanation that there was no A&S process for the LT-1 role because Tess was appointed as a “Talent Appointment”, on the following grounds:

  102. (a) First, there is no evidence that the talent appointment process was permitted within GSK.

  103. (c) Third, the plaintiff submits that the absence of related documents from GSK shows that: (i) there was no guidance from HR or the senior leadership team to Tamara on this, contrary to what she alleged; (ii) there were other considerations relating to the LT-1 role that if revealed, will show that Praveen is not less qualified than Tess; and/or (iii) there were other candidates (including Praveen) besides Tess put forth for the LT-1 role but Tamara did not consider them. Alternatively, the lack of documentary records shows that Tess’s appointment to the LT-1 role was done without regard to GSK policies. The Posting Policy contains the requirement for the manager to document the justification for not conducting an open application, which was not done.

  104. (d) Fourth, Praveen contends that if there was an open process, he would have been selected over Tess, as he was told by Karen and Jayant that he was the strongest contender in the Expert roles that may open up following GSK’s restructuring.

  105. [75] GSK submits that there is no breach of the EA. The Code of Conduct, the Equality Policy, GSK’s alleged representations in the May and June 2019 townhalls and the June LCP do not impose any obligation on GSK to disclose the creation of the new LT-1 role to Praveen or give him an opportunity to apply.

  106. [77] Since March 2019, the LT-1 role selection process was not envisaged to be an “open” process for general application. The selection of LT-1 personnel was a targeted exercise, with the relevant members of the designate Leadership Team (“LT”) being given a significant amount of autonomy to assemble their LT-1 team based on recommendations from senior LT staff within GSK and Pfizer. Such targeted manner of appointment is not unusual within GSK.

  107. [78] Against that backdrop, Tamara created the LT-1 role of Global Head of Expert Marketing to address a gap in expert marketing. This LT-1 role required the potential appointee to have an excellent grasp of both expert marketing and consumer-facing marketing. Tamara's assessment, even if she had been aware of Praveen, is that she would have found Tess to be the only suitable candidate.

  108. My decision

  109. [79] It was accepted by the plaintiff after the evidence was taken at trial, that the question is not whether there is a system for Talent Appointments in GSK. Rather, the nub of the issue here is whether GSK could directly deploy Tess for the LT-1 role (“direct deployment process) without opening the LT-1 role for applications from other candidates (“open posting process”).

  110. [80] I will deal first with the evidence relating to the direct deployment process, followed by whether there was any breach of the direct deployment process, before addressing Praveen’s contention that he would have been selected if there was an open posting process.

  111. Whether there is a direct deployment process in GSK

  112. [81] Tamara’s evidence is that there is generally an open posting process, but direct deployments can be made as an exception. She adduced the Posting Policy that sets out the conditions under which direct deployments could be made. The Posting Policy states that the company “may choose not to post a job when the following apply”. This includes where “Qualified candidates have been identified through the Leadership Planning/Succession Planning/ Differentiated Development process internally”. The Posting Policy also includes other situations which does not involve personnel considered by GSK as a Talent Appointment, for example, where the “job is part of a developmental or rotational programme”.

  113. [82] Tamara’s evidence on direct deployment is supported by the Posting Policy as well as contemporaneous correspondence. GSK’s internal investigator Chris Dilworth (“Chris”), in his email to Praveen on 29 June 2020 (“Chris’ email”) informing him of the state of his investigations, stated that Tess’s appointment was a “Talent Appointment”. He refers to a “UK Postings” policy and indicates that he understands that the sentiments within it apply globally. What he cites is exactly the same as the first bullet point in the Posting Policy, namely that there could be direct deployment for qualified candidates identified through “Leadership Planning/Succession Planning/Differentiated Development process internally”.

  114. [83] The plaintiff submits that Chris’ email supports his case. He refers to a part of Chris’ email, where he said that there appeared to have been no reference to the use of such appointments in the distributed literature and it might have been prudent to explicitly state that the company reserved the right to make Talent Appointments in advance. However, when that email is read in full, it is clear that Chris was not saying that a direct deployment process for a Talent Appointment did not exist or that it was wrong to use it, but that the lack of reference to this in published materials offered opportunity for confusion. Chris was making a critique of GSK’s communications, but he did not question the existence of a direct deployment process for a Talent Appointment or its use.

  115. [84] The plaintiff also referred to the A&S HR Guidance to support his case. Tamara’s evidence was that this document sets out the process in relation to open postings and does not preclude direct deployments for Talent Appointments. Tamara testified that a Talent Appointment could be part of an open posting, and when part of an opening posting, could be subject to the principles of this document. I accept that this is the proper reading of this document.

  116. [85] I make the following observations on the A&S HR Guidance that Praveen relies. First, it is unclear on the face of the document whether it is binding. The header of the document reads “Guidance” and the last sentence in the document reads, “In all cases the business should consider what is fair and reasonable”. These suggest that the document is meant to provide guidelines and not binding instructions that GSK must comply with under all circumstances. The plaintiff accepts that this document is framed as “Guidance” but submits that as part of the document states that the “process will adhere to GSK Values, treat people fairly, respectfully and take place in a timely manner”, it should hence be done in accordance with GSK values and commitment. I do not find that this sentence alone changes the entire nature of the document, such that it takes the document beyond what it is clearly titled as, namely “Guidance”, rather than a binding set of HR instructions. Given that it is only “Guidance”, it would be a stretch to say that a breach of its contents amounts to a breach of GSK’s contractual obligations to its employees, whether read on its own or together with the GSK values and commitment.

  117. [86] Second, in any event, even if it is a binding set of HR instructions, I am of the view that the A&S HR Guidance does not preclude direct deployment of a Talent Appointment under the Posting Policy. Praveen relies on a line in that document that states: “If an open role/ new role has been created as part of the restructure, which you think you would be suitable for / which you would like apply for, you would be supported to apply via the usual GSK Vacancy/GSK Job Posting process.” However, this line is set out in a table that describes four most likely outcomes in the event of an organisational change, one of which is that there is an “Open Role”. The line that Praveen relies on is the description for such an outcome. Notably, the slide as a whole does not set out to define the posting processes, but merely highlights likely outcomes. Neither does it specify whether the “open role / new role” that is mentioned, applies to LT-1 or LT-2 roles or both. Nor does it state that there will be only open postings and that direct deployments are precluded.

  118. [87] I note also that there is a question in the FAQ to this document, asking “How do you treat employees who are Talent Appointments?” The answer given is “The TA would be considered with the aligned pool of employee”. The reference to “TA” in the FAQ suggests that Talent Appointments are recognised within GSK generally. The plaintiff accepted that on the basis of this document, there may have been a “TA” process but submits that “TA” postings would still have to be subject to the processes set out in A&S HR Guidance. However, I find that this is not borne out by the document. It does not state definitively that Talent Appointments can only be posted as per the processes set out therein. It only mentions Talent Appointments as a part of the FAQ and using the phrase that a Talent Appointment “will not normally” have a home role.

  119. [88] Similarly, GSK’s communications in the “A&S Approach LT-1 & 2”, GSK’s townhall meetings of May and June 2019 and the June LCP, do not exclude the possibility of a direct deployment process for a Talent Appointment.

  120. [89] Tamara’s evidence of a direct deployment process is also supported by Rick. He testified that “this [direct deployment] is consistent with how we operated for years”. I found him to be a credible and reasonable witness, who provided candid responses that did not always follow GSK’s case. His evidence adds further weight to what Tamara testified, as well as what the documents and correspondence show.

  121. [90] Moreover, LT-1 roles are very senior positions in GSK. They are one level down from the top leadership roles, which contains C-Suite appointments. It is not unbelievable that GSK would retain discretion to make direct appointments of such senior positions for talent management purposes.

  122. [91] As the primary materials that Praveen relies on do not support his case that GSK could not have carried out a direct deployment of a Talent Appointment, it is not necessary to go into how the absence of documentary records could show that there were other candidates including Praveen or show that Praveen was not less qualified than Tess.

  123. Whether there was a breach of the direct deployment process

  124. [92] Praveen also objects to the direct deployment of Tess as a Talent Appointment, assuming that her deployment was valid, on the ground that Tamara, as the manager, failed to record her justification for not conducting an open application, as required by the Posting Policy.

  125. [93] I note that it is unclear on the wording of the Posting Policy, if it was intended to be a binding set of HR instructions. It is titled “Best practices for global job posting”. It also starts by saying “This document provides global guidance”. Taken together, these lines suggest that the document sets out recommended practices which are not necessarily binding. The plaintiff accepts that this document is just for guidance. However, if this document is only for guidance, then Tess’s failure to keep documentation could not be regarded as being in breach of a binding HR policy. The plaintiff submits that there could still be a breach of GSK policy, in so far as it breaches the requirement in the Equality Policy that managers “must” demonstrate “equal and inclusive treatment of employees”. As set out above, the use of the term “must” in the Equality Policy does not mean that this line should be regarded to be a binding obligation. Moreover, if the Posting Policy is only a best practice or guidance, as accepted by the plaintiff, that would also mean that there is no binding HR instruction that required Tess to keep documentation. It would only be a breach of a recommended practice or guidance. That would present a far weaker case for a breach of “equal and inclusive treatment", than a breach of binding HR instructions.

  126. [94] In any event, even if the Posting Policy was binding, under the Posting Policy, the “keeping” of such documentation is not couched as a condition that managers must fulfill before the Talent Appointment process can be used. The Posting Policy states that the “company may choose not to post a job when the following apply” and lists six situations in which the company may choose not to post a job. This is followed by the line “Managers who decide not to post a role based on reasons listed above should, following agreement with Human Resources, document their decision and record the justification for future reference” [emphasis added]. The documentation of such decision is phrased as a recommendation, and not a pre-condition to the use of the direct deployment. Therefore, under the Posting Policy, the lack of proper documentation does not negate GSK’s decision to appoint specific candidates via direct deployment, under one of the listed situations.

  127. Whether Praveen would have been selected under an open posting process

  128. [95] I will deal next with Praveen’s contention that he would have been selected for the LT-1 role if there had been an open posting process.

  129. [96] Tamara’s evidence is that GSK identified Tess as the person suitable for the role, considering her successes in GSK Consumer Healthcare’s largest division and her wide experiences with global markets. Tamara testified that she would have found Tess more suitable even if she had the opportunity to consider Praveen. She explained that Tess joined GSK in 1995 and had significant experience in GSK Consumer Healthcare’s largest and most successful division, Therapeutic Oral Health, which has footprints in more than 100 global markets. Tess had already started working on the Expert capabilities for other categories even before she was appointed as Global Head of Expert Marketing. In contrast, Praveen joined GSK in 2014 and his experience relates to GSK’s Digestive Health category, which is a small category of lesser strategic importance, and has a smaller global footprint. Praveen’s experience was limited to India initially and Singapore thereafter. His experiences may not be sufficient for the role of the Global Head of Expert Marketing, which requires an understanding of the global markets.

  130. [97] Praveen disputes Tamara’s assessment that he did not have sufficient global experience. However, in his correspondence with GSK staff, Praveen acknowledges that such assessments of him were fair. For example, he told Rick that feedback he received from Tess that “[his] exposure outside India and Asia is minimal given nature of NDH business” is fair.

  131. [98] Rick was also asked on his views of Tess. He said:

  132. [99] The plaintiff submits that the justifications for Tess’s appointment were developed after the event, and that he was discriminated as he had been told that he was the strongest contender for the Expert role. He also refers to strong assessments and commendations about him, for example, winning the President & CEO award in 2017, him being indicated as having a “research driven, best-in class profile” by Korn Ferry, and Jayant stating in a feedback form that “Praveen’s organization has consistently had the highest engagement scores across GSKCH. His teams love him.”

  133. [100] GSK does not dispute that Praveen was a good performer and that he received these assessments or awards. What GSK disputes is their officers telling Praveen that he was the strongest contender, or that he was such a strong contender that he would have been given the LT-1 role if he was included in the process, or given the LT-2 roles if not for the alleged discrimination.

  134. [101] Jayant, who was previously Praveen’s line manager, testified that he did not recall telling Praveen that he was the strongest contender. There was also no mention of Praveen being the strongest contender in the communications between GSK staff when Praveen was being put up for consideration by Unilever. During cross-examination, Praveen accepted that it was never said that he was the strongest candidate for Unilever. Jayant’s testimony is consistent with the feedback form that he filled in for Praveen as part of the A&S process for LT-1 and LT-2 roles. He did not state there that Praveen was the strongest contender for expert roles.

  135. [102] The performance ratings given to Praveen also do not suggest that he would be regarded as the strongest contender for Expert roles. Praveen was given a “3 – Strong Performance” rating in his Year End Performance Review by a Prashant Pandey in 2014 and 2015. The assessment is done on a scale of “1” to “5”, with “1” being the highest. A “3” would be in the middle. Praveen received a “2” rating from Prashant Pandey for his performance in 2016 and a “3” rating for his performance in 2017 by Manor Kumar . Tamara testified that the majority of GSK staff would get a “3” rating.

  136. [103] In addition, Praveen testified that any assurance he received about being a strong contender was not in relation to any role but based on his CV. Rick explained that the staff assessment does not contain any comparative assessment. He also explained that GSK does not engage in cross-ranking of GSK officers. Praveen himself acknowledged that it would be difficult for a supervisor to assess the strength of his staff relative to other officers whose work they did not know.

  137. [104] In applying for roles, there would invariably be competition with others in the organisation who had not worked for Praveen’s line manager. I find it unlikely that Jayant or Karen (who was in HR but not Praveen’s supervisor) would have told Praveen that he was the strongest contender without knowing what role he was specifically applying for or who he was contending with for such a role. I accept Jayant’s evidence that he did not make such assurances to Praveen.

  138. [105] In summary, on the evidence before the court, I do not find that GSK has breached the EA in selecting Tess over Praveen for the LT-1 role.

  139. Whether there is a breach of the Employment Agreement from Praveen being passed over for the LT-2 roles

  140. Parties’ position

  141. [106] The plaintiff submits that GSK’s failure to fairly consider Praveen for the LT-2 roles is a breach of the EA, particularly: (a) GSK’s “A&S Approach LT-1 &2”; (b) GSK’s communications to the attendees of the 29 May 2019 and June 2019 town hall; (c) the June LCP; (d) the Code of Conduct; (e) the Equality Policy; and (f) the Non-Retaliation Policy.

  142. [107] The plaintiff submits that through Tess and Rick, GSK failed to fairly consider Praveen for the LT-2 roles, passing him over in favour of appointees who were less qualified and were associated with Tess, as retaliation for probing into Tess’s appointment to the LT-1 role. GSK’s claim that because of the “geographic pooling principle”, Praveen was eligible for only a single LT-2 role based in the USA, for which he was unsuitable, is unsupported by evidence.

  143. [108] GSK submits that there is no breach of the EA. Praveen was not selected for the LT-2 roles as he was unsuitable for them. At the outset, before the formation of the new Consumer Healthcare Joint Venture, the LT-2 marketing teams were based in different locations, including Weybridge (UK), Nyon (Switzerland), Singapore and Warren (USA). In forming the new Consumer Healthcare Joint Venture (“Consumer Healthcare JV”) between GSK and Pfizer, what was deemed to be fair and equitable was that individuals would only be allowed to apply for or be considered for roles in one geographic location (the “geographic pooling principle”). At the material time, Praveen was supporting both the Pain Relief Category and the NDH Category. In this regard, following the formation of the Consumer Healthcare JV, it was intended that the NDH category would no longer exist, and a new Wellness category would be based in Warren (USA). On the “geographic pooling principle”, Praveen could only be considered for Wellness roles based in the USA. He was included in the pool of eligible candidates there for the LT-2 role of Expert Lead on Wellness, as he was then the Expert Lead for NDH.

  144. [110] GSK denies Praveen’s allegation that he had not been fairly considered by Tess for the LT-2 roles because of her prejudice against him stemming from his probe into her LT-1 appointment. Tess was not aware at the material times that Praveen had probed into the propriety of her appointment to the new LT-1 role.

  145. [111] GSK denies Praveen's allegation that he was passed over for the LT-2 roles in favour of nine appointees associated with Tess despite them being less qualified and having less market exposure than him. The evidence does not bear out Praveen’s claim that the nine were mostly of British nationality or from Tess’s team. Among the nine appointees identified by Praveen:

  146. (a) Ms Nadeen Jibry and Ms Jo Franklin were not part of the LT-2 A&S process. They were part of the LT-3 process and were assessed for roles based in Weybridge, which Praveen was not eligible to be considered for under the geographic pooling principle. They were appointed to LT-3 roles, which Praveen was not keen on.

  147. (b) Ms Janan Ranjan was not selected in the A&S process for a LT-2 role and was eventually made redundant. There is no basis for Praveen to draw any comparison with Ms. Ranjan.

  148. (c) Ms Sandhya Sud applied for the role of Global Marketing Director for Expert when it became an open role and was appointed to the role. Praveen did not apply for this role when it became an open role. This was a LT-3 role, which Praveen was not keen on.

  149. (d) The remaining five appointees (Ms Kavita Sud, Ms Sabrina Sharpe, Mr Stephen Glynn, Ms Jessica Bobet and Ms Heather Pelier) were appointed to LT-2 roles which Praveen was not eligible for under the geographic pooling principle, as they were either based in Weybridge (UK) or Nyon (Switzerland). GSK also submits that it is not fair to say that the appointees to the various LT-2 roles were less qualified or had less market exposure than Praveen.

  150. My decision

  151. [112] In the plaintiff’s Closing Submissions, his submissions on GSK’s breaches regarding the LT-2 roles substantially diverged from his pleaded case. In his Statement of Claim at paragraphs 50 to 54, he pleaded that GSK’s breaches were that: (a) Praveen was passed over for the LT-2 roles in favor of appointees associated with Tess or their British nationality despite them being less qualified and having less market exposure than him; (b) Praveen was not fairly considered by Tess for LT-2 roles because of Tess’s prejudice against him stemming from his probing into the propriety of her appointment to the new LT-1 role; and (c) there was systemic discrimination against personnel of Asian nationalities or minority descent.

  152. [113] In the plaintiff’s Closing Submissions, Praveen did not submit on the above pleaded claims. Instead, his submissions focused on the following: (a) GSK did not comply with “A&S Approach LT-1 & 2”, which the plaintiff submits sets out the policy for the LT-2 application process; (b) there was no basis for GSK to rely on the “geographic pooling principle”; (c) GSK’s claims that the unfilled roles became open roles should not be believed; and (d) Praveen was more qualified than the other LT-2 candidates that were selected.

  153. [114] I will first examine Praveen’s case on the basis of what he had pleaded, before examining his case as based on his Closing Submissions, which differed from his pleadings.

  154. Praveen’s pleaded case

  155. [115] Unlike the LT-1 Role, Praveen was invited to participate in the A&S process for the LT-2 role. He completed his online psychometric test and attended interviews with Tess and Rick. After the interview, Praveen received feedback that he might not be considered for the LT-2 role because there were specific skillsets that he did not have, that he was overqualified and underqualified in some respects for the roles; that his exposure to markets outside of India and Asia is limited; and that his networking and business development efforts required improvement.

The judgment continues past this page. Read the rest at eLitigation.