Mr O Oyekenu v BP Exploration Operating Company Limited and 2 others — 2022

This was an open preliminary hearing at which the respondents applied to strike out the claimant's claims under rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013. The claimant, a software developer supplied to work for BP, alleged race discrimination arising from a placement that ran from 10 March 2021 to 23 March 2021, and he also pursued a breach of contract claim for notice pay against the second respondent. The tribunal noted contemporaneous material showing performance concerns, but it approached the claimant's case at its highest in line with the discrimination strike-out authorities.

Applying Anyanwu, Mechkarov, Malik, Cox v Adecco and Chandhok, the tribunal held that the race discrimination claims were not simply a bare assertion of difference in status and treatment. The claimant's references to Mr Obi and Mr Bilal, and his case that he was repeatedly treated differently from colleagues who did not share his protected characteristic, were enough to raise fact-sensitive issues for the final hearing. The tribunal said the performance evidence might ultimately explain the termination, but the competing inferences had to be resolved after evidence.

The first respondent's submission that it could not be liable for Mr Flynn's conduct under section 109 of the Equality Act 2010 was treated as a factual issue for the final hearing. On the breach of contract claim, the tribunal accepted that there was no written contract with the second respondent and that a pleaded 12-month notice term looked unconvincing, but it held that an implied contract remained arguable. The respondents' strike-out applications were therefore dismissed. The closing paragraph refers to the claimant's ability to pay and his means, but the extracted text does not state any monetary sum.