Seyi Omooba v (1) Michael Garrett Associates Ltd (t/a Global Artists) and (2) Leicester Theatre Trust Ltd
Judgment
Judgment has today been handed down in the case Seyi Omooba v (1) Michael Garrett Associates Ltd (t/a Global Artists) and (2) Leicester Theatre Trust Ltd. Chris Milsom (instructed by Didlaw) acted for the First Respondent (the agency) and Tom Coghlin KC (instructed by Howes Percival LLP) acted for the Second Respondent (the theatre). Download judgment.
Summary
This Employment Appeal Tribunal (“EAT”) judgment will not be the last word on belief discrimination cases especially in light of Higgs v Farmor’s School making its way to the Court of Appeal in October 2024. In the interim, however, the decision of Eady P in Omooba provides welcome guidance for distinguishing cases where the reason for a decision is because of a belief or an objectionable manifestation of that belief, and cases where there is a truly separable reason; in this case potential business harm arising from a social media storm. Chris Milsom and Tom Coghlin KC successfully resisted all grounds of appeal on behalf of the First and Second Respondents.
The judgment also deals with: whether harassment is “automatic” where a breach of the European Convention on Human Rights (“ECHR”) is found; it addresses the question of when the Employment Tribunal (“ET”) can take into account the resources of a third party when making an award of costs; and provides detailed guidance on the use of documents once proceedings have ended.
Two interesting cross-appeal arguments on genuine occupational requirements and forced speech were left unanswered.
Background
The Claimant was a rising star of musical theatre when, in 2019, she was cast in the lead role of Celie in a stage production of The Color Purple, which is widely recognised as being at least in part about a physical lesbian relationship between Celie and the character Shug.
The Claimant is a devout Christian and, in 2014, had posted the following on Facebook:
“Some Christians have completely misconceived the issue of Homosexuality, they have begun to twist the word of God. it is clearly evident in 1 Corinthians 6:9 -11 what the bible says on this matter. I do not believe you can be born gay, and i do not believe homosexuality is right, though the law of this land has made it legal doesn't mean its right. I do believe that everyone sins and falls into temptation but its by the asking of forgiveness, repentance and the grace of God that we overcome and live how God ordained us too, which is that a man should leave his father and mother and be joined to his wife, and they shall become one flesh. Genesis 2:24. God loves everyone, just because he doesn't agree with your decisions doesn't mean he doesn't love you. Christians we need to step up and love but also tell the truth of God's word. I am tired of lukewarm Christianity, be inspired to stand up for what you believe and the truth # our God is three in one # God (Father) #Christ (son) #Holy Spirit”
It was publicly announced that the Claimant had been cast as Celie on 14 March 2019. The following day, Aaron Lee Lambert, an actor in the musical Hamilton, who had no connection to either respondent in the case, tweeted the Claimant’s 2014 Facebook post and added:
“@Seyiomooba Do you still stand by this post? Or are you happy to remain a hypocrite? Seeing as you’ve now been announced to be playing an LGBTQ character, I think you owe your LGBTQ peers an explanation. Immediately”
The tweet quickly went viral and led to what has since reasonably been described as a social media “storm”, with criticism of the Claimant and the planned production of The Color Purple for having cast her.
There followed a period of communication between the Claimant, her agent, and the theatre, initially to ascertain whether the contents of the 2014 Facebook post remained the Claimant’s belief on such matters, and subsequently how to react in order to keep the production viable.
The Claimant made it clear that her beliefs had not changed and provided the following statement to set out her position:
“The law protects my freedom of expression as well as freedom of thought, conscience and religion. With regard to the role of Celie, I will not disregard that Celie falls in love with Shug or that Celie believes in God and is black. There is so much to Celie. The role of an actor is to play characters different from myself. As for the [sic] personal faith I will stand firm.”
The theatre also consulted with others, including the rights holder for The Color Purple, Theatre Rights Worldwide (“TRW”), in relation to concerns that if the Claimant played the part as not involving a lesbian relationship there might be legal action arising from the copyright terms of the licence agreement, which forbade, without prior approval, “changes in the characters….including…any change in the gender or characterizations of any characters in the play”. In a reply which made it clear no such changes would be approved, TRW said:
“at times, an actor’s skill set may call for the playing of a part which may not be in alignment with personal beliefs. However, the supportive environment of theatre cannot embrace a position, especially from the actor in the leading role of Celie, that creates a hostile atmosphere for the cast members and audiences alike.”
The Claimant was subsequently advised on 21 March 2019 that her engagement to play the role of Celie had been terminated with immediate effect. The letter explained that the production explored issues of sexuality, with the lesbian relationship between Celie and Shug being an important part of the story, and that intimate scenes involving Celie and the actress playing Shug were intrinsic to the production.
The letter stated that the play and production were: “seeking to promote freedom and independence and to challenge views, including the view that homosexuality is a sin”, and went on to refer to the claimant’s 2014 post, observing that this was in the public eye and she had made clear she would not distance herself from it. It was recorded that there was adverse negative publicity about the claimant’s involvement in the production, which was expected to grow as time went on, and there was some evidence of potential boycott by LGBT groups; in the circumstances, the Claimant’s continued engagement was considered untenable as it would affect the harmony and cohesion of the cast, audience reception, the producers’ reputation and the good standing and commercial success of the production. The claimant was told that she would be paid in full the contract sum of £4,309.71.
The social media storm also affected the Claimant’s relationship with her agency, which was concerned that individual agents and clients may leave as a result of the ongoing adverse publicity. The agency initially implemented a policy of not responding to the matter.
On 24 March 2019, Y Naija, a newspaper aimed at young Nigerians, published an article saying the Claimant’s publicist had released a statement saying she believed: “homophobia is a natural reaction to homosexuality which is an aberration”; the agency was concerned that the claimant had not first discussed this statement, which could only aggravate what was already a difficult position. The agency emailed the Claimant to say that the agreement for representation had been terminated, “effective from today 24 March 2019”, saying she should invoice the theatre direct for payment and there would be no agency commission payable. The Claimant’s details were removed from the agency website. The Claimant denied any part in the release of the statement via Y Naija, and asked the agency to reconsider its decision. The agency upheld the decision to terminate the agreement.
The Claimant found another agency, but that relationship did not last long, and she has not had any paid acting work since.
The Employment Tribunal proceedings
The Claimant subsequently commenced ET proceedings against the agency (the first respondent) and the theatre who employed the Claimant (the second respondent) in August 2019 which included claims of:
Direct Discrimination because of religion / belief.
Indirect Discrimination.
Harassment related to religion / belief.
Breach of contract
The ET made the following findings:
That the Claimant, by her own admission, had not read the script, contrary to instructions, at the time of accepting the part.
That the role did involve the portrayal of a physical lesbian relationship, meaning the Claimant, again by her own admission, would not in fact have performed the role of Celie and would have withdrawn from the production in any event.
That while the Claimant did suffer some less favourable treatment as a result of hurt feelings at being dropped from the production (even though she would not have played the part anyway), and that 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.
Likewise, that what had operated on the agency’s mind was not the fact of the Claimant’s belief, but the commercial risk to the business, which “threatened the agency’s survival”.
That it was not reasonable for the respondents’ actions to have had the necessary “effect” to make a finding of harassment, and that, contrary to arguments made by the Claimant, it was not the case that any breach of the ECHR would amount to a violation of her dignity, and thus harassment.
That there was no breach of contract as the Claimant was in prior repudiatory breach in that she would not in fact have played the part and no damages were due.
That the actions of the agency were “prescribed by law” as a result of express and implied terms of her agency contract.
The ET therefore dismissed the Claimant’s claims in their entirety. It went on to consider the issue of costs, where it made the following findings:
That the Claimant was aware, before the hearing, that the stage production required Celie to be played as a lesbian, and that she would not have played the part.
That the respondents had made a drop hands offer to the Claimant which should have prompted a careful re-evaluation of the likely prospects of success.
That there had been legal confusion on the Claimant’s part in speaking of “motive” rather than “reasons why”, confusing this with “but for” causation, and that Eweida v UK [2013] ECHR 37, had not overruled domestic law.
That the Claimant’s harassment claims had no reasonable prospect of success as the respondents had not been involved in the social media campaign against her and were not therefore responsible for the “behaviour which created a hostile environment for her”.
That the Claimant’s representative had not appreciated that the question was whether the terms of the contract had been broken, not whether a protected characteristic was the reason why, and that the Claimant had, in any event, been offered the full contract fee.
That turning down an offer of payment in full was vexatious and the conduct of the claim was unreasonable in not re-evaluating the case properly.
That the threshold for making an award of costs was therefore met.
The Claimant did not provide any information about her means to pay a costs award and there was no application on her behalf to adjourn in order to provide such information. The ET did not agree that it should assume impecuniosity on the Claimant’s behalf and was satisfied that both Christian Concern Limited (“CCL”), who had supported her claims, and its subsidiary the Christian Legal Centre (“CLC”), who had represented the Claimant throughout, were deeply invested in bringing and continuing the Claimant’s claims, finding that:
“61. … Using the case as a publicity opportunity, rather than fighting it on its merits to redress wrong, transferred Christian Concern’s public relations budget to the respondents.
62. … there must be a suspicion that Christian Legal Centre did not want to engage in close study of the respondents’ case and revaluation of the merit of its own because of the campaigning opportunity. … We concluded that this did mean we should take their resources into account when exercising discretion to make a costs order. …”
Finding that this case was close to the facts of Beynon v Scadden [1999] IRLR 700, the ET rejected the argument that the introduction of the ability to make an award of wasted costs against a representative, pursuant to rule 80 schedule 1 ET (Constitution and Rules of Procedure) Regulations 2013 (“ET Rules”), made any difference in this regard.
The ET therefore found that the Claimant should bear the whole of the respondents’ costs, subject to detailed assessment.
Finally, there was a disagreement between the parties as to how documents which had been disclosed during the proceedings should be dealt with. The Claimant and her representatives wanted the documents to remain published on a website where they had been made available during the hearing, which had to be held remotely due to the closure of the London Central ET at Victory House during the pandemic. The respondents wanted the documents to be removed from the website at the end of the hearing, following the normal procedure whereby the bundle of documents is only available for public scrutiny during the hearing itself. The ET agreed with the respondents and ordered the documents to be removed.
The Claimant appealed the following issues:
The dismissal of her claims for direct discrimination and harassment.
The costs award.
The order for documents to be removed from the CLC website.
The EAT Decision
In a judgment set out over some 77 pages, Eady P dismissed all grounds of the Claimant’s appeal.
There are five key areas of the judgment:
Revisiting Higgs v Farmor’s School; a new category?
No “automatic” harassment for breaches of ECHR.
Costs awards taking into account the means of third parties.
Use of documents once a hearing has ended.
The untested cross appeal arguments.
Revisiting Higgs v Farmor’s School; a new category?
This case revisited much of the same ground that Eady P had previously considered in the matter of Higgs v Farmor’s School [2023] ICR 89 EAT, which the respondents in this case argued had been wrongly decided.
The Higgs judgment considered that there were two potential reasons why a party may be found to have directly discriminated against a Claimant:
(i) As a consequence of the belief itself.
(ii) As a consequence of a manifestation to which there is a justifiable objection.
The first of these categories is uncontroversial. The second category has been the subject of some criticism, in that it inserts a test of proportionality into direct discrimination, which the respondents argued was contrary to the statutory scheme intended by parliament and beyond the EAT’s interpretive powers under the Human Rights Act 1998.
Simply put, had parliament intended such a test to exist for belief claims, it would have created a bespoke framework as it did with section 15 of the Equality Act 2010 for discrimination arising from disability. As parliament had not created such a bespoke scheme, the assumption should be that it had intended not to, and the amendment created by the second category in Higgs went beyond the scope of the legislation and should therefore be reversed.
Perhaps mindful that Higgs itself is now making its way to the Court of Appeal, Eady P sidestepped this aspect of the argument, but confirmed a further category for consideration, i.e., where the reason for the impugned treatment is neither the belief itself nor an objectionable manifestation, but a truly separable feature.
It was confirmed that in this context, the approach is the same as in the field of whistleblowing, following the cases of Kong v Gulf International Bank (UK) Ltd [2022] IRLR 854 CA and Fecitt & Others v NHS Manchester (Public Concern at Work intervening) [2012] ICR 372 CA, where Elias LJ noted that this was an exercise that requires the ET to “look with a critical – indeed sceptical – eye to see whether the innocent explanation given by the employer” is indeed the real explanation [90-91].
The Tribunal’s finding that the reason for the treatment by the respondents had been the potential business damage arising from the social media storm was therefore considered unassailable.
Eady P went on to distinguish the cases of Din v Carrington Viyella Ltd [1982] ICR 256, and R (oao E) v Governing Body of JFS and ors [2009] UKSC 15, stating that neither provided an “apt analogy”.
In contrast to Din, the ET in this case had not failed to engage with the background to the respondents’ decisions and to ask whether prohibited discrimination had influenced the mental processes of the decision makers. On the contrary it had carefully examined the background to each decision and concluded the Claimant’s belief was not an operative part of the reasoning.
Similarly, in contrast to JFS, looking behind the explanations provided (as it was said the ET carefully did), the operative reasons were not informed by or dependent upon the Claimant’s belief. Faced with a similar reality or threat arising from an equivalent social media storm, but relating to an entirely different belief, the decisions would have been the same.
No “automatic” harassment for breaches of the ECHR:
The Claimant’s argument that any breach of the ECHR amounted to a violation of dignity and therefore would “automatically” amount to harassment, was dismissed.
Eady P first found that given the ET’s other findings, there was no breach of the ECHR on which the Claimant could rely on the particular facts of her case.
However, she went on to note that:
“In any event, I am not persuaded that the claimant is right in her contention that every unjustified interference with a right under the ECHR must necessarily be treated as harassment for section 26 EqA purposes, not least as that would: (i) fail to give meaning to the statutory language, in particular the need for a violation of dignity; (ii) ignore the discretion afforded under article 2.3 of the Framework Directive, such that “the concept of harassment may be defined in accordance with the national laws and practice of the Member States”; and (iii) suggest, absent any prescription under domestic or international law, that section 26 is required to be a means of enforcement of rights under the ECHR for these purposes.”
This would appear to shut the door on any similar future claim following such an argument, even if the factual background were better suited.
Costs awards taking into account the means of third parties:
Eady P here reaffirmed the view of the EAT in Beynon, which expressly rejected the submission that the ET’s order was effectively a wasted costs order “by the back door”, observing:
“25. … It is no such thing; under a wasted costs order a non-party is either disallowed costs or is ordered to pay them, neither of which results obtains here.”
Like the ET, the EAT was particularly critical of the Claimant’s decision to continue her pursuit of the breach of contract claims once she was in receipt of an offer to pay the full contractual sum and it became clear to her that she would not have performed the role in any event.
As Eady P noted [170]:
“Applying an objective test, it is hard to see how that did other than demonstrate an intention to abandon and altogether refuse to perform the contract. Indeed, on the claimant’s own case, had she not already been dismissed from the production, she would in due course have pulled out, abandoning and refusing to perform the contract she had entered into. In the circumstances, the ET was plainly entitled to find that the claimant had acted in repudiatory breach throughout the lifetime of the contract: “the contract was empty”.”
The EAT also agreed with the view that the harassment claim had no reasonable prospect of success [175].
The ET found that there would have been no financial loss and far less for injury to feelings than had initially been envisaged. Eady P considered that to be an entirely unobjectionable finding [174].
The EAT therefore found [178]:
“These were all conclusions that were open to the ET on the evidence and information before it, which warranted its finding that the threshold requirements for a costs award had been met. There is no proper basis on which it would be open to the EAT to interfere with that conclusion (Yerrakalva).”
In relation to the amount awarded, the EAT confirmed that the ET was not required to carry out a more detailed assessment of the particular costs incurred as a result of unreasonable conduct (following McPherson v PNP Paribas (London Branch) [2004] EWCA Civ 569, [2004] ICR 1398; and Sunuva Ltd v Martin UKEAT/0174/17) and that the ET was best placed to evaluate the effect of the that conduct (per Yerrakalva [2011] EWCA Civ 1255, [2012] IRLR 78).
Eady P, at [182] considered that:
“the ET had what was described in Beynon as an “unfettered discretion”. Not only did it not have to have regard to the claimant’s personal ability to pay, it had a broad discretion as to what it did consider relevant in terms of the wider resources that might be available to her. In so doing, the ET was not circumventing the wasted costs regime now provided under rule 80 ET Rules; as the EAT observed in Beynon, a wasted costs order is made against the representative (with all that that implies); that is not the effect of the award made against the claimant as a party to the litigation.”
And at [183]:
“it was open to the ET to look at the nature of the support that had been provided by those organisations and their involvement, and interest, in the proceedings. In this regard, the ET’s findings were clear: the CCL and CLC were “deeply invested in both bringing the claim and in continuing it”; there was a suspicion that the CLC had chosen not to engage with the merits of the case because it saw this as a “campaigning opportunity”; and, thus using the litigation as an opportunity for publicity rather than fighting it on its merits to redress a wrong, the CCL’s public relations budget had effectively been transferred to the respondents.”
Agreeing with the judgment of the ET, the EAT concluded [184] that:
“Where a supporting organisation is thus deeply invested in litigation used for the benefit of some collateral purpose in which that organisation itself has an interest, I cannot see that the ET would err, in the exercise of its broad costs discretion, in considering the resources of that organisation when determining the quantum of any costs award.”
Use of documents once a hearing has ended:
Having considered the various legal authorities relating to the use of documents, Eady P dismissed the Claimant’s appeal, and set out the following useful guidance [211] on the use of documents once a hearing has ended:
The ET’s powers relating to interparty disclosure, and the use to which such disclosure can be put, arise from rule 29 ET Rules (Sarnoff paragraphs 13-22).
Those powers enable the ET to grant or refuse permission for the wider use of a disclosed document in a manner akin to the powers afforded to the civil courts pursuant to CPR 31.22 (Cloete paragraph 28).
This is consistent with the inherent jurisdiction afforded to the ET by reason of the constitutional principle of open justice, which both requires and allows it to determine what that principle requires in terms of access to documents or other information placed before it (Dring paragraph 41).
Application of the open justice principle will normally also meet the requirement that the ET must give effect to the ECHR, consistent with its obligations under the HRA, albeit where a different balance would be struck, section 6 HRA requires the ET to give preference to the result achieved under the ECHR (A v BBC paragraph 57).
The ET’s power to permit wider public access to hearing materials does not, however, give rise to an automatic right to such access. It will be for the ET to evaluate the competing considerations arising in the case before it: on the one hand, it will need to consider the purpose of the open justice principle and the potential value of the wider access in advancing that purpose; on the other, it will need to weigh the risk of harm to the administration of justice and/or the legitimate interests of others, bearing in mind the practicalities and proportionality of allowing such access (Dring paragraphs 45-47).
Given the fact-specific nature of the balancing exercise required, the scope of any challenge by way of appeal is limited to those cases in which it can be said that the ET erred in principle or reached a conclusion that was plainly wrong or outside the range of conclusions that might reasonably be open it in the circumstances of the case (Fallows, paragraph 51).
The unresolved cross appeal grounds:
Two very interesting points were raised by way of cross appeal. First, it was argued on behalf of the theatre that it should be possible to rely upon a genuine occupational requirement, per Schedule 9 of the Equality Act 2010, in cases relating to the manifestation of a belief.
This argument was based on the legal position that where a belief is protected, so is the opposite belief or lack of belief. It was therefore suggested that it was a genuine occupational requirement that, in the circumstances pertaining at the time of dismissal, the actor playing Celie should not have engaged in the manifestation of belief that the Claimant had done, and that this was a proportionate means of achieving a legitimate aim.
This was raised as a point of appeal only in the event of the Claimant being successful in her appeal against the dismissal of her claim for direct discrimination. That claim having failed, it was unnecessary for Eady P to make any specific finding on this point.
The second cross appeal of interest was raised on behalf of the agency, which argued that requiring it to continue to promote the Claimant in light of her publicly stated beliefs, and per the terms of the agency agreement, would amount to forced speech, per the findings of the Supreme Court in Lee v Ashers Baking Company Ltd and ors [2018] UKSC 39, [2020] AC 413.
Eady P considered that this was more properly described as an alternative ground of argument, and although she noted it as potentially relevant to the determination of the agency’s reason for acting as it did, given the ET’s categorical findings on the reason for the agency’s decisions, this was another point on which the EAT chose to express no view.
Comment
Eady P noted at the outset of her conclusions that the factual matrix in this matter was “unusual”, the Claimant having conceded that she would not in fact have played the role of Celie which she complained of being dismissed from.
That will not, however, detract from what will be considered to be a very welcome clarification of certain matters relating to cases of this sort.
Firstly, and perhaps most importantly, the clarification that, following Higgs, it is still possible to highlight separable features of the decision-making reasons, which do not require a Higgs-style analysis of proportionality. In particular that the respondent may be found to have acted to resolve a dysfunctional situation consequent on the expression of a protected belief, and that (depending on the tribunal’s findings of fact) this reason may be properly regarded as distinct from the belief itself, the manifestation of the belief, and the manner of that manifestation. In such a case the respondent will not be liable for direct discrimination and will not need to overcome a proportionality hurdle of the kind identified in Higgs.
This point will no doubt face some further scrutiny in the Court of Appeal’s consideration of Higgs, and employers in particular should therefore remain wary, especially as a finding that the decision was because of an objectionable manifestation of a belief (without objective justification) remains available following this judgment.
The failure of the automatic harassment claim is likely to cause little surprise, but assists in providing some further confirmation of the principles of harassment under the Equality Act 2010.
Any party engaging in litigation as part of a campaign which it supports, whether acting also with genuine care for a litigant to whom it is providing assistance, will need to consider this judgment very carefully.
The respondents’ costs, which are still subject to detailed assessment, are said to be in the region of £300,000. Even for organisations with seemingly deep pockets and generous benefactors such as the CCL and CLC, that is a bill which is likely to sting.
The clarification on the use of documents, especially in cases such as this where there are strong public opinions on either side of the argument, is likely to be very welcome to tribunals and parties across the UK, especially with a number of cases continuing to be heard remotely or in a hybrid format (and a small number of cases where there is significant public interest also being “broadcast” via the ET’s video hearing systems even where all the parties and witnesses are physically present).
Finally, the untested, or perhaps more accurately unanswered, cross appeal points appear to remain as legitimate arguments to put before a tribunal in cases of this sort for further argument in the future and it will be interesting to see if / when they are argued and what the outcome will be.
Seyi Omooba v (1) Michael Garrett Associates Ltd (t/a Global Artists) and (2) Leicester Theatre Trust Ltd
EA-2021-000523-NLD
EA-2021-000604-NLD
EA-2021-000086-NLD
Hearing dates: 12-14 December 2023
CHRISTOPHER MILSOM of Cloisters (instructed by Didlaw) for the First Respondent (the agency)
TOM COGHLIN KC of Cloisters (instructed by Howes Percival LLP) for the Second Respondent (the theatre)
