How should employers respond when faced with the clash of religious beliefs and sexual orientation?
In the case of Omooba v Michael Garret Associates Ltd and Leicester Theatre Trust Ltd, the Central London Employment Tribunal found that there had been no discrimination after the claimant, a Christian and an actress, was dropped from a production of The Color Purple following circulation by another actor on social media of an old Facebook post made by her relaying her beliefs on homosexuality.
Background
Seyi Omooba was set to play the main character, Celie, in a stage musical production of The Color Purple. The production is based on the renowned book of the same name and it is a well-known story in which Celie has a relationship with another woman.
Ms Omooba had made a Facebook post in 2014 professing her beliefs that a person cannot be born gay and that homosexuality is not right. The post was retweeted after it was announced that she would be playing the role of Celie and was the subject of criticism on social media. Shortly after, Ms Omooba’s contracts with the theatre and her agents were terminated. She brought claims of discrimination and harassment because of her beliefs as well as claims of breach of contract.
Were her beliefs protected by discrimination law?
The first task for the Tribunal was to determine whether Ms Omooba’s beliefs were protected beliefs under the Equality Act 2010. A belief must meet several criteria to gain protection, one of which is that it must be worthy of respect in a democratic society. The Tribunal found that merely stating the belief did not make it unworthy of respect. After “anxious and careful” consideration, the Tribunal held that Ms Omooba’s beliefs scraped over the threshold for protection.
The Tribunal’s decision
Ms Omooba failed in all her claims against the theatre and the agency. We have summarised some of the highlights of the Tribunal’s reasoning below.
- Ms Omooba claimed direct discrimination which occurs when a person is treated less favourably because of a protected characteristic, such as religion or belief. The Tribunal found that the treatment of the Claimant was not because of her beliefs. The theatre terminated her contract because of the effect the adverse publicity would have on the production (e.g. low ticket sales and threats of protests and other actors dropping out of the performance). The agency was concerned that a continued association with Ms Omooba would damage its business.“We concluded that 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,” read the judgment.“The centrality of authentic depiction of a lesbian role was a key part of the factual matrix. It was not necessary that she should be a lesbian, but it was important that she was not perceived by audience and company as hostile to lesbians. The decision to terminate was made to deal with the dysfunctional situation that arose from the context and circumstances of the public retweeting. 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.”
- Ms Omooba claimed harassment in that she felt that she had suffered unwanted conduct relating to a protected characteristic (her beliefs) which had the purpose or effect of violating her dignity or creating an intimidating, hostile or offensive environment for her. The Tribunal held that it was not reasonable for the treatment to have had that effect on her given the neutral stance taken by the theatre and the frequent communication Ms Omooba had with them at the relevant time.
- Finally, the Tribunal found there had been no breach of contract. The contract with the theatre was “empty” because, once Ms Omooba had read the script and realised that the play would portray a lesbian relationship, she would not have played the part anyway.
Practical considerations
- The theatre and the agency successful defended Ms Omooba’s discrimination claims as they showed that the reasons for the treatment were not her beliefs. In finding that Ms Omooba’s beliefs were protected, the Tribunal said that “a pluralist society must respect belief, however unacceptable to many people”.
- It can be tricky to manage a situation where different protected characteristics, such as sexual orientation and religion/belief, are at odds.
- Employers must take care not to discriminate against its employees in such circumstances. This includes situations where the employer may not agree with an employee’s beliefs as they may still be protected by discrimination law.
- Companies who wish to promote equality and diversity may find it beneficial to set out their ethical values in a code of conduct which is actively distributed to all those who work within their organisation, expressly covering social media and what the company views as unacceptable behaviour.
- They might also consider asking employees to review their social media history and check for posts that no longer reflect the employee’s current views. As well as providing a useful reminder and deterrent to inappropriate behaviour, this will be a relevant consideration (although not a deciding factor) in a subsequent claim.
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