In this case the EAT held that there had been no religion or belief discrimination or harassment when a Christian actor was dismissed from a role playing a lesbian character and her agency terminated her contract. This followed a social media storm over her publicly expressed beliefs that homosexuality is a sin, and someone cannot be born gay.

The Facts

The claimant is a Christian actor, cast in January 2019 to play the role of Celie in the stage production of The Color Purple. Celie is seen as an iconic lesbian role and, when the claimant's casting was announced, a social media "storm" developed relating to a Facebook post she had posted in 2014 when a student. In this post she had expressed her belief that homosexuality was a sin and a person cannot be born gay. The consequences of the media storm, and her maintaining her views, led to the termination of the claimant's contracts with the theatre and her agency. The theatre offered to pay the money due under her contract.

The claimant brought employment tribunal claims of religion and belief discrimination harassment, and breach of contract. Shortly before the tribunal hearing, having read the script, the claimant volunteered she would not have played the part of Celie, and would have resigned from the role if she had not been dismissed. The tribunal found that all her beliefs were protected, but dismissed all her claims. It also made a costs award for the entirety of the Respondents' costs.

The claimant appealed to the EAT. The respondents cross-appealed against the tribunal's finding that:

• the claimant had suffered detrimental treatment at being dropped some weeks before she decided to pull out;
• its failure to find that there was an occupational requirement that the actor playing Celie had not manifested a belief such as that expressed in the claimant's Facebook post; and
• its failure to find that keeping the claimant on the books of the agency would effectively have amounted to compelled speech.

The EAT dismissed all the appeals.

Key to the Tribunal and EAT decisions were that:

• the claimant had suffered detrimental treatment as she would have experienced some hurt in being dropped despite confirming she would not play the role.
• the tribunal had permissibly found that, while 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 reason the claimant was dropped by the theatre was because of the impact the social media storm would have on the production, and on its commercial viability, not because of the claimant's beliefs. It also concluded that the agency's decision to terminate was taken because of the commercial risk to its business.
• the claimant's argument that the operative reason she was dropped was as a consequence or manifestation of her belief confused the reason with the context. In this case the protected characteristic of belief did not materially impact on the thinking of the decision maker and was not, therefore, a subjective reason for the treatment.
• as the tribunal had the permissible finding that the claimant's belief was not the operative reason for her treatment, it was unnecessary to rule on the occupational requirement or compelled speech arguments of the respondents' cross appeal.
• in respect of the harassment claim, the tribunal had not failed to have regard to the impact on the claimant of the social medial storm, but had found that the respondents had neither caused nor contributed to it.
• the tribunal had also been correct to dismiss the claimant's breach of contract claim against the theatre.  She had been offered the full contract fee, so there was no loss.  It was also significant that the claimant knew she would not play a lesbian character, but had not raised this with the theatre, or sought to inform herself as to the requirements of the role of Celie. She was therefore in repudiatory breach of her express obligation of good faith, and of the implied term of trust and confidence.
• in making the costs award, the tribunal 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. It was entitled to take into account the means of the two Christian charities supporting her case.
  

What this means for employers

The central issue in this case was whether the claimant's treatment was because of her religion or belief. Both the tribunal and the EAT found it was not: the claimant's protected religious beliefs were only the context. The EAT stated in its decision that distinctions between context and reason are fact-sensitive and can require nuanced judgements by the employment tribunal. Employers will also need to carefully analyse this distinction when deciding whether to take disciplinary action or dismiss employees expressing personal views outside of the workplace.

Omooba v Michael Garret Associates