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Facts: The actor, Seyi Omooba, was cast as Celie in The Color Purple. At the time she agreed to the role, she did not realise that this character is a lesbian who has a physical relationship with a woman.
When the cast was publicly announced, another actor re-tweeted one of Ms Omooba’s Facebook posts from 2014 in which she said “…I do not believe homosexuality is right…”. This attracted a lot of public criticism.
The theatre was very concerned by this substantial negative attention and the affect it would have on the production’s success. Both the theatre and Ms Omooba’s agent terminated their contracts with her. Following the termination, Ms Omooba read the script and acknowledged that she would not have played the role and would have resigned from the role in due course.
Ms Omooba brought Tribunal claims for religion or belief discrimination, harassment and breach of contract.
Tribunal decision: The Tribunal dismissed Ms Omooba’s claims and she appealed to the EAT.
EAT decision: The EAT agreed with the Tribunal and rejected the appeal. It said that the reason for the termination of Ms Omooba’s contract was not discriminatory.
She was not dismissed because of her expression of her belief, but because of the fall-out from the the re-tweet (including the adverse publicity and impact on the cast, the audience, the reputation of the producers and the commercial success of the production). In other words, she was dismissed due to the consequences of the ‘manifestation’ of her belief. Further, the situation could potentially have been resolved had Ms Omooba issued a convincing public statement, but she had refused to do so.
In terms of harassment, the action by the theatre had not contributed to or caused the social media storm. It was not reasonable for Ms Omooba to feel offended by it. In respect of her breach of contract claim, she had been paid her full performance fee and, even if she had not, she did not suffer loss as she said she would not have performed the role in any event.
Implications:
This is a helpful decision for employers, as it suggests you can rely on the adverse fall-out from the manifestation of a protected belief as a non-discriminatory reason for dismissal (or other action).
This differs from other recent case law involving belief discrimination, which has centred mainly on looking at the manifestation itself and whether this (and therefore the action taken in response) was (in)appropriate. For example, the EAT’s decision in Higgs v Farmor’s School (which we looked at in our September 2023 Newsletter here).
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