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Religious Belief Discrimination: Actor Terminated from Gay Role

It is not often that we get to report on an employment law case that has even a hint of razzmatazz about it.   However, the case of Omooba v Michael Garrett Associates & Leicester Theatre Trust Ltd – about an actress who was sacked from her starring role in a musical theatre production of The Colour Purple because of her religious views on homosexuality, is about as close as it gets.

The case concerned the various protections provided to employees and workers under the Equality Act 2010 from discrimination on the grounds of religion or belief. 

Under the Equality Act 2010, “religion” is defined as “any religion and a reference to religion includes a reference to a lack of religion” and belief means “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”

Although the Equality Act 2010 refers to several different types of unlawful discrimination, the case in question involved a claim of direct discrimination and harassment on the grounds of religion or belief. 

Direct discrimination is defined under section 13 of the Equality Act 2010 as follows:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

The “protected characteristic” being religion or belief in this case.

Harassment is defined under section 26 of the Equality Act 2010 which states:

A person (A) harasses another (B) if;

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Ms Omooba was an actor and committed Christian.  In 2014, she published a post on Facebook in which she said that, being of Christian faith, she did not believe someone could be born gay and she did not believe homosexuality was right.

Four years later, in 2018, she auditioned for a part in the stage musical production of The Color Purple, based on the book of the same title in which the central character, Celie, has a sexual relationship with another woman.  In December 2018 Ms Omooba was offered the lead role of Celie, which she accepted.   However, in March 2019, Ms Omooba ’s Facebook post from 2014 was tweeted by another actor who accused her of being a hypocrite and said that as she was about to play a LGBTQ character, she owed an explanation to LGBTQ peers for the views expressed in her Facebook post.  

The tweet gained rapid traction and very quickly came to the attention of her agent and the theatre who asked her if she still stood by the opinions that she expressed in her Facebook post.  Ms Omooba was asked to release a statement, distancing herself from the post but she was unwilling to do this.   In the meantime, unrest was building among the production team, some of whom were themselves gay and expressed hurt at what Ms Omooba had said.  More generally, the theatre was concerned about the media storm surrounding the controversy and the impact this may have on the ability of the audience to relate to Ms Omooba in the role of Celie.

Less than a week after the furore had started, the theatre terminated its engagement of Ms Omooba in the role of Celie.  In the letter of termination, it explained that her 2014 post was at odds with a production that was intended to “promote freedom and independence” and challenge the view (such as Ms Omooba held) that “homosexuality was a sin”.  This, combined with the negative publicity about her involvement, led the theatre to conclude that her ongoing engagement in the role of Celie was untenable.  She was paid in full for the duration of the contract.

Not long afterwards, Ms Omooba ’s agency also decided to end its contract with her, due to the social media storm and its potential impact on the agency’s reputation.

Ms Omooba subsequently brought claims against the theatre and the agency, alleging that by terminating her engagement in the role of Celie and her agency contract, they had directly discriminated against her and harassed her because of her religious belief.    She also brought a claim of breach of contract against the theatre. 

Shortly before the Employment Tribunal hearing, Ms Omooba read the script for the part of Celie and revealed that she would never, in fact, have played the role of Celie, and would have resigned in any event. 

The Employment Tribunal dismissed Ms Omooba ’s claim of direct discrimination based on the termination of her engagement.  The Tribunal held that the reason her contract was terminated was not because of her religious belief but because of the effect of the adverse publicity from her Facebook post on the cast, the audience’s reception of the production, the reputation of the producers and the commercial success of the production.   The Employment Tribunal said that a key factor in the decision to terminate her contract was that, in order to achieve an authentic depiction of the character of Celie, it was important that the person playing this part was not “perceived by the audience … as hostile to lesbians”. 

Ms Omooba’s harassment claim, which was related to the manner of the termination of her contract, also failed.  The Employment Tribunal found that the agency and the theatre tried to discuss their concerns with Ms Omooba and that the letter of termination was not hostile but took care to explain the reasons why her engagement was ending.  

In relation to Ms Omooba’s breach of contract claim, the Tribunal said that because she had been paid the contract in full, she had suffered no financial loss and therefore no damages were due.  In any event, the Tribunal said that because Ms Omooba knew she would not play a lesbian character but had not raised this with the theatre, she was in repudiatory breach of her express contractual obligations, and of the implied term of trust and confidence.   Therefore, even if she not been paid the full contract fee, she would not have had a claim for damages because the theatre would have been entitled to terminate her contract immediately for breach. 

Ms Omooba appealed against the decisions to the Employment Appeal Tribunal. 

In relation to the direct discrimination claim, Ms Omooba said that her religion and belief significantly influenced the decision to terminate her engagement and therefore the Tribunal should have found that her belief was the reason for the unfavourable treatment.   The Employment Appeal Tribunal dismissed this ground of appeal stating that, although the tweeting of Ms Omooba’s Facebook post was part of the context, this was not the operative reason for the decision to terminate her contract.  The reason for termination was due to the social media storm, the commercial and other risks that arose as a consequence of the re-posting of her original Facebook post containing her statement of belief. 

Ms Omooba’s appeal against the dismissal of her harassment claim was that the agency and the theatre’s actions had contributed to a vicious social media campaign against her, which had created a hostile environment for her.   The Employment Appeal Tribunal however rejected this argument and said that the actions of the agency and the theatre had not created that environment and they could not be responsible for the actions of third parties.

All other grounds of appeal were also dismissed by the Employment Appeal Tribunal. 

The judgment of the Employment Appeal Tribunal has drawn criticism from some experts who say that it could have the undesirable effect of giving employers the impression that they can lawfully dismiss an employee whose controversial religious/belief-based views are causing unrest or upset among the workforce or are causing outrage on social media such that the employer is worried about the effect on its reputation.   The response to this is that the ruling should not be interpreted as allowing employers to legitimately dismiss employees in such situations – the ruling was based on a very particular set of facts which are unlikely to be replicated in a workplace situation. 

Decisions in the workplace that involve the expression of controversial views have to be made on a case-by-case basis, with careful consideration given to the real reasons and motives for wanting to take action.   The law of discrimination on the grounds of religion and belief is a nuanced area and one where, quite often, the expression of those beliefs can conflict with other beliefs or protected characteristics, which makes it a very tricky area to navigate.   It is, therefore, best to seek advice first where an employee is expressing views (related to a protected characteristic) that are causing issues in the workplace. 

Despite the verdict (and a costs award made against her), Ms Omooba is not giving up.  In a statement released after the ruling, Ms Omooba said that “the theatre world needs to be told, loud and clear, that cancelling people for their Christian beliefs is illegal and wrong.”   Her battle is set to continue as her legal representatives, Christian Legal Centre, vowed to take her case to the Court of Appeal.  

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

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