Background
Ms Omooba was an actress – a committed Christian and the daughter of Pastor Ade Omooba, a co-founder and director of Christian Concern and the Christian Legal Centre. The First Respondent, Michael Garret Associates Ltd, was her agent (and an employment services provider pursuant to s.55 Equality Act 2010). The Second Respondent, the Leicester Theatre Trust Ltd, had engaged her to play the role of Celie in a joint production of a play based on Alice Walker’s novel The Color Purple. The engagement was to be from 28 May to 20 July 2019 and the cast was publicly announced in March.
On 15 March 2019, another actor posted a screenshot of a Facebook post by Ms Omooba in September 2014, when she was a student just turned 20, in which she had written the following:
“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 it’s right. I do believe that everyone sins and falls into temptation but it’s 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” [19]
The Leicester Theatre Trust sacked her on 21 March and Michael Garrett Associates Ltd terminated its agency contract with her on 24 March.
The evidence
In Seyi Omooba v Michael Garret Associates Ltd T/A Global Artists & Anor [2021] UKET 2202946/19, 2602362/19, Ms Omooba asserted:
“(a) a belief in the truth of the Bible, in particular Genesis 2:24 and 1 Corinthians 6:9, (b) a belief that although God loves all mankind, He does not love all mankind’s acts, in particular, she believes that homosexual practice (as distinct from homosexual desires) is sinful/morally wrong”
– but she did not assert a belief that homosexuality, either as a matter of orientation or of desire (as opposed to homosexual practice), was in itself sinful or wrong [22].
When she had accepted the part of Celie in The Color Purple, she had evidently done so on the basis that “there were several interpretations of the relationship between Celie and Shrug” (the other main character) [41]. The respondents, however, described the play as an “iconic gay work” [42]. At the time of accepting the part, she had not read the script and “had still not read it when the storm blew up which led to her being dropped from the production” [44]. In her witness statement of January 2021, she had agreed “that it was not the role for her” [45]. The Employment Tribunal concluded on that point that she had not accepted the part in bad faith or to set up a discrimination claim as part of a Christian campaign against homosexuality: rather, “We concluded that she had not done her homework or been paying attention…” [47].
The judgment
Applying the test in Grainger PLC v Nicholson [2009] UKEAT 0219/09/0311, the Tribunal concluded “after anxious and careful consideration … that the Claimant’s beliefs as manifested in the Facebook post did scrape over the threshold for protection, having regard to section 9(2) [of the ECHR]” [94]. It also concluded, however:
- that the direct discrimination claim had not been made out against either the theatre or her agent [114];
- that the indirect discrimination claim had not been made out, because the provision, criterion or practice (PCP) alleged against the agency would only disadvantage those who condemned homosexuality on religious grounds – “It is a restatement of the case of indirect discrimination” [117] – and similar considerations applied to the PCP alleged against the theatre [119].
She had been dismissed because of the effect of the adverse publicity arising from the retweet of her Facebook post, “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” [107]. Further:
“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” [107].
The Tribunal also rejected the claims of harassment and breach of contract. As to the latter:
“if there were a breach, there are no damages. There is no financial loss because she would not have played the part. There is no loss of opportunity to enhance her reputation by performing, because she would not have played the part. If there is damage to her reputation, it was not caused by being dropped from the production but by an unconnected person’s tweeting in March 2016 of her Facebook post and the outcry resulting from that” [132].
Paragraph 107 as a whole, on which the most important finding in the entire judgment turns, reads,
“107. 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. 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.”
In other words, the claimant was not discriminated against on the grounds of her own Christian beliefs, but on the grounds of her unpopularity amongst others with contrary, anti-Christian beliefs, who, because of their contrary beliefs, found her beliefs to be (as the witness Squires put it*, speaking for himself) “rebarbative”.
If that piece of sophistry is the measure of the protection of Miss Omooba’s beliefs, it is no protection at all that is worth having.
* 63. Ian Squires, chairman of the board of trustees of the theatre, said he did not believe the claimant should be penalised for her views, but when it caused offence and was likely to create a disturbance they had to be careful. He worried that she was a religious fundamentalist and that “irrationality will reign”. Her views “are rebarbative and it has to be up to us if we accept in our midst.. She simply sounds like trouble”.
rebarbative
/rɪˈbɑːbətɪv/
adjective FORMAL
unattractive and objectionable.
But the most cynical and sinister part of this disappointing judgment is to be found in the following casual, contemptuous, understated hate speech on the part of the judge Goodman and his lay colleagues, the grudging finding that Miss Omooba’s uncontroversially orthodox Christian beliefs, as manifested in the Facebook post, merely SCRAPED OVER the threshold for the worthless so-called protection.
It is as if the claimant had volunteered to play Lady Macbeth in a performance to be staged in a maximum security prison to an audience of murderers (who, sadly, had all been taught to blame their putative irresistible, involuntary and immutable violent “orientations” for their sins, not themselves), who took offence that she was on record as having once expressed agreement with the sentiments of the divine commandment, “thou shalt not kill”, an audience that would cheer if (say) Sally Challen was cast in the Scottish role, but would surely boo this annoyingly innocent youngster who wouldn’t hurt a fly for simply not being nasty enough for that depraved audience.
That the claimant proclaimed that the grapes removed from her reach were probably sour anyway would have affected quantum if she had proved liability, but the finding that she wasn’t discriminated against because of her beliefs at all, merely because others with different beliefs found her beliefs rebarbative, is shameless sophistry.
A side issue addressed in the ET judgment concerns the participation of the public in the hearing. In an earlier interlocutory appeal on 25 November 2020, the Employment Appeal Tribunal (EAT) dismissed in robust terms an appeal by the claimant against a case management decision by the ET refusing an application that the substantive hearing should be held remotely rather than in person: Omooba v Global Artists [2020] EAT 25.11.2020.pdf. At para 18 Mr Justice Griffiths said: “It is astonishing that an appeal should even have been considered, let alone pursued through a rule 3(7) rejection and rule 3(10) hearing, in respect of a matter so clearly within the discretion of the Employment Judge, and particularly given the careful attention given to both to the decision itself and to the explanation of her reasons for reaching it.”
However, it appears from para 11 of the 15 February 2021 ET judgment that “Public access to written case materials was provided by the claimant’s representative’s Christian Legal Centre hosting on its website electronic copies of the witness statements. Documents referred to in the statements were uploaded as each witness was called; at the tribunal’s request, the pleadings, list of issues and opening arguments were posted from the beginning of the hearing, so that the public could understand the issues being argued. This was arranged prior to the hearing and with the consent of both respondents. The Christian Legal Centre also hosted for public access during the hearing a hard copy of the witness statements and documents bundle at their premises in Wimpole Street. This would usually have been done at the Employment Tribunal’s premises at Victory House, which is currently closed, to both staff and public, because of inadequate ventilation.”
But “At the conclusion of the hearing on 8 February an order was made that the claimant’s team remove case materials from the website by 5 pm that day; any request for further access must be made to the tribunal.” (para 13.) So, no live streaming of the hearing, but access for the public to the relevant documents during the hearing.
The issue of livestreaming/recording was also addressed in a postscript to the judgment of Chamberlain J last week in R (Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin), 18 February 2021. At para 161 the judge said: “Prior to the hearing, the Administrative Court Office indicated to the parties that, because of the COVID-19 pandemic, the hearing of this claim would take place remotely using a video-conferencing platform. The Claimants invited me to give permission for a television production company to record and re-broadcast the proceedings in the interests of open justice. They made written submissions in support of that application. The Secretary of State resisted it, on jurisdictional grounds. I refused the application.” In giving his reasons Chamberlain J referred (in para 162) to R v Loveridge [2001] EWCA Crim 973 and to the Spurrier judgment (R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin)), to which I drew attention in my comment on last week’s weekly roundup. The ‘jurisdictional grounds’ is the prohibition in section 41 of the Criminal Justice Act 1925. Whether that prohibition should be relaxed in the digital age of 96 years later is surely a matter for consideration by the Law Commission.