In Omooba v Michael Garrett Associates Ltd (t/a Global Artists) & Anor [2024] EAT 30, Ms Seyi Omooba, an actor, was cast as Celie in a stage production of The Color Purple. Celie is regarded as an iconic lesbian role and the announcement that Ms Omooba was to play it led to a social media storm about an earlier Facebook post in which she had expressed her belief that homosexuality was a sin. As a result, her contracts with the theatre (the second respondent) and her agency (the first respondent) were terminated.

Before the Employment Tribunal, she claimed religion and belief discrimination, harassment and breach of contract.  Shortly before the ET hearing however, having only at that point read the script, she volunteered that she would never in fact have played the part of Celie and would have resigned from the role in due course.  The ET dismissed her claims with costs.

She appealed against those decisions and against a further order relating to the continued use of the hearing documents. The respondents cross-appealed the ET’s finding that Ms Omooba had suffered detrimental treatment, 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 Ms Omooba’s Facebook post, and its failure to find that keeping her on the books of the agency would effectively have amounted to compelled speech.

It was common ground that the Christian religion, a belief in the truth of the Bible and a belief that homosexual acts are sinful all fell within the protection of the Equality Act 2010, but “the respondents disputed that was so in respect of other aspects of the claimant’s beliefs, including her belief that you cannot be born gay”.  The ET had concluded, however, that all the beliefs relied on by Ms Omooba met the tests set out in Grainger Plc & Ors v Nicholson [2010] ICR 360 and were protected under the Equality Act – and that part of the ruling was not appealed [43].

The Employment Appeal Tribunal dismissed her claim:

• The ET had not fallen into the error of confusing reason and motive but had permissibly found that, though her 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.In the circumstances, it was unnecessary to rule on the occupational requirement or compelled speech arguments.
• As for the harassment claim, the ET had not failed to have regard to the impact on the claimant of the social medial storm (the “other circumstances” for the purposes of section 26(4)(b) Equality Act 2010), but had found that the respondents had not caused or contributed to it, and permissibly found that her treatment had not reasonably had the requisite effect.The ET had also been entitled to reject the claimant’s argument that any breach of ECHR rights would amount to a “violation of dignity”; that argument was academic, as the ET had not found that any of the claimant’s ECHR rights had been infringed.
• As to the breach of contract claim against the second respondent, she had been offered the full contract fee, so there was no pecuniary loss.Moreover, as she knew that 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 in repudiatory breach of her express obligations, and of the implied term of trust and confidence.  Although the second respondent was not aware of this at the date of termination, no damages (eg for loss of publicity/enhanced reputation) could be due.
• The ET had been entitled to make the costs award in the terms in which it had done so.

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