The Employment Appeal Tribunal (EAT) held in Omooba v Michael Garrett Associates Ltd (T/A Global Artists) and another that there was no direct religion or belief discrimination or harassment when a Christian actor was dismissed from a role and her agency terminated her contract.
Ms Omooba is a Christian actor whose religious beliefs have led her to refuse to play certain parts. She made a public Facebook post in 2014 setting out her beliefs that homosexual desires are a sin and that a person cannot be born gay. In January 2019 she was cast in the role of Celie, a lesbian character who has a physical relationship with a woman in Leicester Theatre Trust Ltd's production of the Color Purple. When the cast was announced Ms Omooba's Facebook post was shared on social media which led to a "social media storm" in which she was criticised, along with the planned production for her casting. Both the theatre and Ms Omooba's agency terminated their contracts with her and she brought claims for direct religion or belief discrimination and harassment against the theatre and the agency. Shortly before her claims were heard she stated in her witness statement that she would never have played the part of Celie due to her beliefs and would have resigned from the role anyway.
The tribunal rejected her claims. It held that her religious belief was not the reason why the theatre terminated her contract. The social media storm meant that the play's director was concerned that Ms Omooba's beliefs meant that the central relationship in the play could not be performed convincingly and that the audience's knowledge of Ms Omooba's views would interfere with the suspension of disbelief which was essential for the performance. There were also concerns that some members of the audience might disrupt the performance and there might be demonstrations outside the theatre. These matters had already been threatened on social media and there was a real possibility that the production would have to be cancelled in the face of a building storm of protest.
The tribunal concluded that the theatre's decision to terminate was because of the impact the social media storm would have on the production, and on its commercial viability, and not because of Ms Omooba's beliefs. It also found that her beliefs were not the reason why the agency terminated her contract and that it was due to the commercial risk to its business. Some of its staff had threatened to leave and clients might also leave. The agency considered that Ms Omooba had breached the implied duty of good faith. The tribunal dismissed the harassment claims on the basis that the social media hostility towards Ms Omooba was not because of any action taken by the theatre or agency.
On appeal the EAT held that in order to determine the central issue of whether the theatre and the agency terminated their contracts with Ms Omooba because of her religion or belief, the tribunal was required to consider the mental thought processes of the relevant decision-makers. The EAT held that, looking behind the explanations given by the respondents, the operative reasons were not informed by, or dependent on, Ms Omooba's belief. Faced with a similar reality or threat arising from an equivalent social media storm, but relating to an entirely different belief, the tribunal was satisfied that the decisions would have been the same.
Take note: In Omooba no discrimination was found to have occurred because the actions of the theatre and the agency were taken due to the hostility towards Ms Omooba's Facebook post and the potential business harm which arose as a result. In other words, the reason for the claimant's dismissal was the reaction to her post and not the beliefs held in themselves.
