A Christian actress who lost an appeal against a 2021 employment tribunal decision, which found she had not been discriminated against in relation to her religion, is now seeking permission to take her case to the Court of Appeal.
This month the Employment Appeal Tribunal (EAT) upheld a previous tribunal decision against Seyi Omooba and its ruling for her to pay legal costs.
Omooba was given the lead role of Celie in the musical The Color Purple, a production of Alice Walker’s classic novel at Leicester’s Curve Theatre in 2019. She accepted the lead role after originally auditioning for the character of Nettie.
But after the cast was revealed, Aaron Lee Lambert, who starred in Hamilton in the West End, posted a screenshot of a 2014 Facebook post in which Omooba said: “I do not believe homosexuality is right, though the law of this land has made it legal doesn’t mean it’s right”. In his post, Lambert asked if she stood by the post given that Celie has a lesbian relationship in the story.
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A social media backlash called for Omooba to be removed from the cast. Her agent, Global Artists, told her that unless she retracted the comments and publicly apologised, she would be unable to continue under their management. She refused to do so.
Curve terminated her contract. Its statement read: “The play and production are seeking to promote freedom and independence and to challenge views, including the view that homosexuality is a sin.” Later, her agent also terminated her contract.
Shortly before the original tribunal hearing, having only then read the script, the claimant volunteered she would never in fact have played the part of Celie, and would have resigned from the role in due course.
She continued with her claims of discrimination against both the theatre and her agency, as well as claims of harassment and breach of contract but these were all dismissed and the judge ordered Omooba, who is supported by the Christian Legal Centre, to pay legal costs.
Omooba appealed those decisions. The Curve Theatre and Global Artists cross-appealed the tribunal’s finding that the claimant had suffered detrimental treatment.
Mrs Justice Eady, president of the EAT, found it was open to the tribunal to find that the claimant had suffered detrimental treatment: “It had not fallen into the error of confusing reason and motive but had permissibly found 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.”
The employment tribunal had found that the reason that Curve Theatre withdrew the part from her was not Omooba’s religious beliefs or her expression of them, but to protect the commercial viability of the production.
Its judgment in Omooba v Michael Garret Associates (Global Artists) and Leicester Theatre Trust said: “… while the situation would not have arisen but for the expression of her belief, it was the effect of the adverse publicity from its retweet, without modification or explanation, on the cohesion of the cast, the audience’s reception, the reputation of the producers and ‘the good standing and commercial success’ of the production, that were the reasons why she was dismissed.”
It added that it was important that Omooba was not perceived by the audience and company as hostile to lesbians. The decision to terminate was made to deal with a dysfunctional situation that arose from the social media backlash. “The religious belief itself was not the reason why the theatre decided this. It was the commercial and artistic reality of the cluster of factors that it would not succeed,” it said.
Similarly, on the decision of Omooba’s agent to stop representing her the tribunal found he terminated the contract because he thought a continued association would damage his business.
“The contract was not terminated because of her religious belief, but because in his mind the publicity storm about her part in The Color Purple threatened the agency’s survival,” said the tribunal judgment.
Justice Eady at the EAT agreed: “Distinctions between context and reason are fact-sensitive and can require nuanced judgements by the first instance tribunal… This is not a case where the ET [employment tribunal] shirked that task; having carried out a detailed evaluation of the evidence, it reached permissible conclusions as to the operative reasons for each of the decisions in issue, which were not the claimant’s beliefs.
“By her first two grounds of appeal, the claimant is seeking to go behind that evaluation by the first instance tribunal of fact; that does not provide a proper basis of challenge and I duly dismiss these grounds of appeal.”
Can we really allow an employer to rely on a ‘social media storm’ as a reason for dismissal if it’s clear that the storm is entirely based on an employee’s protected characteristic?” – Darren Newman, employment law consultant
All other grounds were dismissed by the EAT, including the tribunal’s decision to award costs.
Justice Eady said: “In making a costs award against the claimant, the ET had been entitled to reach the conclusion that her claims either had no reasonable prospect of success from the outset, or that they had no reasonable prospect once the claimant realised that she would never in fact have played the role of Celie, or that the conduct of the claims had been unreasonable; as such it had permissibly found the threshold for a costs award was met.”
Implications
Writing in a blogpost, Darren Newman, employment law trainer and consultant, said he worried about the implications of this case as it suggests that an employer can legitimately cave in to a social media campaign and dismiss an employee with controversial views – even if the Equality Act protects them.
“If an employer can persuade a tribunal that it genuinely dismissed an employee because of external pressure then it seems that that will be enough,” he said. “Even if the pressure was directly based on the protected characteristic, the dismissal will not amount to discrimination.
“The EAT’s reasoning on this issue seems logical but I am left feeling rather uncomfortable with it. The facts of the case make it easy to feel that Ms Omooba’s claims lack merit – if only she had read the script before the audition this whole situation could have been avoided! But can we really allow an employer to rely on a ‘social media storm’ as a reason for dismissal if it’s clear that the storm is entirely based on an employee’s protected characteristic?”
Newman drew comparisons with the Higgs v Farmor’s School case, which is going to the Court of Appeal, and asked what would have happened had the theatre company seen Omooba’s Facebook post before others had seen it and withdrew the part because it foresaw the social media storm that it would cause.
Court of Appeal
Andrea Williams, chief executive 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.”
Omooba said: “I have long forgiven all those who have sought to ruin my theatre career, but the theatre world needs to be told, loud and clear, that cancelling people for their Christian beliefs is illegal and wrong. From the outset, the theatre was offering to pay me off for terminating my acting contract, and I would not take that money. This case is about the freedom of Christians to hold our beliefs in the modern world, and about the truth of what has happened to me.”
This article was updated following news that Omooba would seek a hearing at the Court of Appeal.
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