Mr Wycliff Odoyo v James Finlay Limited — 2023

The tribunal found that Mr Wycliff Odoyo’s employment was terminated on 28 January 2022 after a long period of formal and informal performance management. It accepted that the respondent’s genuine reason for dismissal was capability: the claimant was not meeting the required standard in his role, particularly in relation to timeliness of responses, accuracy of information, self-management, and completion of agreed deliverables. The tribunal held that the claimant had been given notice of the concerns, repeated opportunities to improve, support through weekly one-to-one meetings and training offers, and multiple warnings under the respondent’s Performance Capability Procedure.

In reaching that conclusion, the tribunal described the respondent’s process as very fair. It noted the progression from informal management in 2020 to formal stage one, stage two, and stage three reviews in 2021, including a first written warning, then a final written warning, then a temporary pause in the process when some improvement was observed. The process was later restarted when further concerns arose. The tribunal also found that, when the final decision was taken, demotion was not a realistic option because no suitable vacancies existed and a reduced role had already been tried in relation to some projects. It held that dismissal fell within the range of reasonable responses.

The direct race discrimination claim failed. The claimant alleged that being required to attend frequent one-to-one meetings and complete preparatory paperwork for them was less favourable treatment because he was black and of Kenyan origin. The tribunal found no evidential basis from which it could infer that race was an effective cause of the treatment. It accepted the respondent’s explanation that the meetings and paperwork were part of the performance management process and that the action tracker requirements applied to the team more generally. It also rejected the claimant’s evidence that Dr Dehrmann had said he was “explaining things like a Kenyan”.

The indirect race discrimination claim also failed. The tribunal held that the respondent did not have the alleged practice of requiring employees to speak without an accent. It found that the respondent required employees to communicate coherently, but that many people across the global organisation spoke with accents and the claim therefore could not succeed. As all claims failed, the tribunal did not go on to assess remedy.