Currently there is a substantial interest in the developing area of law that is religion and belief discrimination. Cases such as that of Maya Forstater, which related to a contractor whose contract was not renewed following the expression of gender critical views on social media, have led to a particular focus on where believes are and are not protected as well as when employers can take action based on those beliefs. This point was revisited in the recent matter of Omooba v Michael Garrett Associates Ltd (T/A Global Artists) and Another [2024] EAT 30
Facts
In 2019 Seyi Omooba, a well-established theatre performer, was cast in the Curve Theatre’s production of ‘ The Colour Purple.’
The musical follows Celie Harris, an African- American woman raised in Georgia throughout the early to mid 1900s and the hardships she faces throughout her life. It involves controversial content which included violence and homosexuality.
When the Curve theatre announced the casting for their version of the musical on 14 March 2019, Omooba was cast as Celie, a large amount of twitter backlash ensued after attention was brought to Facebook posts made by Ms Omooba based on bible verses outlining her belief that people are not born homosexual.
By 20 March 2019 the Curve had removed Omooba from the role stating that following
“significant and widely expressed concerns both on social media and in the wider press… it has been decided that Seyi will no longer be involved with the production”
On 24 March 2019 her agency, Michael Garrett Associates Ltd had also stopped representing her.
Omooba announced in September 2019 her intention to present a claim for religion and belief discrimination through the employment tribunal against both the theatre and her agency. In 2021 the Employment Tribunal found that Ms Omooba, was dismissed because of the adverse publicity and audience perception rather than specifically as a result of her beliefs. Ms Omooba appealed that decision, but the Employment Appeals Tribunal upheld the original judgment. Claims of Breach of contract and harassment were also proposed, but for the purposes of this article, we will focus on the Direct discrimination claim.
Relevant law and discussion
Protected Belief
Section 10 of the Equality act the protectant characteristic of religion and belief is outlined as:
- Religion means any religion and a reference to religion includes a reference to a lack of
- Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
- In relation to the protected characteristic of religion or belief—
- a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief;
- a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.
When deliberating whether the view is worthy of respect in a democratic society, the tribunal found that this became a question of weighing whether Ms Omooba’s statement of her belief on Facebook interfered with the rights and freedoms of others. The Tribunal found that the post did ‘scrape’ over the threshold to be a protected belief and therefore the belief itself was protected.
Direct Discrimination
In order to amount to direct discrimination under s13 of the Equality act 2010, the treatment must be “because” of the relevant protected belief. This is generally done by considering whether someone who did not hold those beliefs would have been treated more favourably in the same circumstances
The Theatre argued that Ms Omooba was dropped from the production not because she had declared a belief, but because in the particular circumstances of this case her role in the production was “untenable”. The theatre, whilst viewing the social media campaign against Ms Omooba, came to the decision that if she was allowed to continue in the role of Celie, ticket sales may be lower, protests may occur and the reputation of the Theatre may suffer. The tribunal found the theatres chief executive made a commercial decision rather than a discriminatory one. Similarly, the agent in dropping Ms Omooba from their representation made a decision based on the commercial risk of clients and agents leaving their representation. The impact of the Claimant’s statements was therefore separable from the underlying beliefs that they contained within them.
Conclusion
The finding in this instance reaffirms the importance of considering the difference between protecting a specific belief and the effects of that belief and/or that expression of belief. In this instance, whilst the belief itself was protected, the fact that the manner in which the same was expressed had caused commercial issues for the Respondent meant that the conduct was not considered to have occurred as a result of the belief itself. In the current social media environment where consumer boycotts are often encouraged, employees and employers may wish to take particular care in posting beliefs that are likely tyo be controversial as even where the belief is protected, the substantial commercial impact is unlikely to be.
