Christian actress was dismissed for a social media backlash in response to her beliefs on homosexuality, loses discrimination case and seeks Court of Appeal hearing.
The case of Omooba v Michael Garrett Associates Ltd (t/a Global Artists and Leicester Theatre Trust) considers how and when the Equality Act 2010 may (or may not) protect religious beliefs, and whether an employer is entitled to remove someone’s employment in the face of a social media outcry because of those beliefs.
Circumstances
Although the claimant auditioned for a different part, Seyi Omooba who is a Christian, was chosen to portray the lead character Celie in the musical adaptation of The Color Purple at Leicester’s Curve Theatre in 2019. The story is renowned for its depiction of a lesbian relationship involving the character.
Questions arose around Omooba’s suitability for the role, when a 2014 Facebook post resurfaced, in which Omooba discussed her beliefs, which are derived from her faith, and said: “I do not believe homosexuality is right, though the law of this land has made it legal doesn’t mean it’s right”.
A social media outcry ensued, demanding Omooba’s removal from the cast. Her agency, Global Artists, informed her that unless she retracted her comments and issued a public apology, they could no longer represent her. Omooba stood firm and refused to comply and they let her go.
The Curve Theatre also terminated her contract, concerned that the employee’s involvement could disrupt cast harmony, tarnish reputations and affect the production’s commercial success. They emphasised their commitment to promoting freedom and challenging societal perspectives, including those regarding homosexuality. They informed her that she would be paid for all monies due to her under the contract.
Notably, it was revealed that Omooba had not familiarised herself with the script until shortly before the tribunal hearing, despite this being a requirement of her casting. At this point, she realised she would not have been comfortable portraying Celie and would have eventually resigned from the role anyway.
Claims
Omooba brought a breach of contract claim, which was dismissed because of her own actions which amounted to a repudiatory breach and that she had nonetheless already been paid by the theatre for any relevant direct costs that might have been owing under the contract.
Under the Equality Act 2010, she brought claims of direct discrimination on the grounds of religion or belief and harassment.
The Employment Tribunal (ET) found that her beliefs ‘scraped’ over the threshold of being protected but rejected her claims. It acknowledged that she had suffered less favourable treatment when she had been terminated from the theatre production because of a situation that would not have arisen were it not for the expression of her beliefs. However, they found that the dismissal was not because of her believes, it was due to the adverse public reaction which threatened the success of the production. She appealed.
The Employment Appeal Tribunal (EAT) upheld the original decision, confirming that “whilst the claimant’s belief formed part of the context, it was not a reason for either her dismissal by the theatre or the termination of her agency contract.”
Points of interest
In a blog post, Darren Newman, an employment law trainer and consultant, expressed concerns about the implications of the case, suggesting that it sets a precedent where employers can succumb to social media pressure and dismiss employees with controversial views, even if protected by the Equality Act.
Newman highlighted the possibility that if an employer can demonstrate a dismissal was genuinely due to external pressure, regardless of whether that pressure was based on a protected characteristic, it may not be considered discrimination – according to the reasoning of the Employment Appeal Tribunal (EAT).
While Newman found the EAT’s reasoning logical, he admitted feeling uneasy about it. He noted that while Ms. Omooba’s case may seem lacking in merit due to her failure to read the script beforehand, allowing an employer to justify dismissal based solely on a ‘social media storm’ related to an employee’s protected characteristic, raises ethical concerns.
Drawing parallels with the Higgs v Farmor’s School case, Newman questioned the hypothetical scenario where the theatre company pre-emptively withdrew the role from Omooba based on foreseeing a social media storm and if she would have won her case as Higgs did. Does the timing of a dismissal, i.e. in response to an actual social media storm versus a pre-emptive one, make the difference as to whether the employer was entitled to dismiss or whether it was discriminatory?
The claimant has sought to take her case to the Court of Appeal. The CEO of the Christian Legal Centre, said: “This is an open and shut case of discrimination against the Christian faith if there ever was one. Seyi was racially abused, received death threats and was hounded out of her career for a polite and temperate expression of what the Bible says about marriage. An unjust ruling which defends her sacking cannot stand and we will be taking this to the Court of Appeal.”
