Seyi Omooba v Michael Garrett Associates Ltd & Leicester Theatre Trust EA-2021-000523-NLD; EA-2021-000604-NLD; EA-2021-000086-NLD
didlaw is pleased to announce that the Employment Appeal Tribunal (EAT) (Mrs Justice Eady) has handed down judgment in this case and has dismissed the Claimant’s appeals in their entirety.
didlaw, with Elizabeth McGlone instructed, represented the First Respondent, Michael Garrett Associates Ltd, enabled and supported by the stellar advocacy of Chris Milsom (Cloisters). Credit must also be given to Alex Payton of Howes Percival and Tom Coghlin KC (Cloisters) who successfully represented Leicester Theatre Trust.
This case concerns the literary sensation that is The Color Purple. The substance of the case was the Claimant’s claims for religion and belief discrimination and harassment, and breach of contract. Seyi Omooba was contracted to play the role of Celie, an iconic lesbian role but, following a social media furore arising from an historic Facebook post of hers, where she had expressed her belief that homosexuality was a sin, her contracts with both Respondents were terminated. Just before the Employment Tribunal hearing the Claimant, having only just read the script for the play, confirmed that she would never have in fact played the part of Celie and would have resigned from the role in any event. Despite this admission the Claimant continued with her claims which were all dismissed by the tribunal. The tribunal also made a costs award of £300,000 was against her.
The Claimant appealed the tribunal’s decision including the costs award and against an order relating to the continued use of the hearing documents on the Christian Legal Centre’s website (the Claimant’s representative).
Mrs Justice Eady determined that it had been open to the tribunal to find that the Claimant had suffered detrimental treatment yet it had not fallen into the error of confusing the reason and the motive but had reasonably found that the Claimant’s belief formed part of the context of her dismissal by the Theatre and the termination of her agency contract with the Agency but it was not the reason. In these circumstances there had been no reason to rule on either occupational requirements or compelled speech arguments. It was not the Claimant’s belief that precipitated her dismissal/termination but rather the fall-out that arose from the social media post and its widespread dissemination.
In relation to the Claimant’s harassment claim the tribunal reasonably found that the Respondents had neither contributed to nor caused the social media storm and also that the Claimant’s treatment had not reasonably had the requisite effect. The tribunal was entitled to reject the Claimant’s argument that any breach of European Convention on Human Rights (ECHR) rights would amount to a violation of dignity and in any event, this was academic as there had not been any infringement of her ECHR rights.
The breach of contract claim against the Second Respondent was misguided as she had been paid her full contract fee and not suffered any loss. In addition, the Claimant knew she would not play the lesbian character but had not raised this with the Theatre and nor had she familiarised herself with the role of Celie. Therefore she was in repudiatory breach of her express obligations and the implied term of mutual trust and confidence.
As for the costs award, the largest costs award against a Claimant to date (we believe) Mrs Justice Eady held that the Tribunal had been entitled to reach the conclusion that the Claimant’s claims either had no reasonable prospect of success from the outset, or that they had no reasonable prospect once the Claimant determined she would never have played the role of Celie, or that the conduct of the claims had been unreasonable. The costs award threshold had been met. The Claimant objected to the amount of the award and the EAT held that the ET was entitled to find that the Claimant’s change in position (in relation to actually carrying out the role of Celie) had an effect on the entire case. It had also drawn inferences that were open to it on its findings as to the conduct of the Claimant’s case and had also reasonably considered the resources of those that had supported/pursued the litigation on behalf of the Claimant for their own purposes.
Finally, as for the order of the tribunal in restricting the future publication of all hearing documents this had been a decision available to the tribunal under its case management powers. On making this order it had had due regard to the principles of open justice and was entitled to exercise its discretion as it did.
This judgment shows that separability remains alive and well in belief cases. Given that Mrs Justice Eady presided over this case, there was hot contention following the outcome of the case of Higgs v Farmor’s School [2023] ICR 1072 where guidance was given about cases where the reason for the treatment is found to be the ‘objectionable manifestation’ of a protected belief itself. The Claimant did not amend her Grounds of Appeal following the Higgs outcome and would have been wrong to do so in any event as Higgs was not intended to address the situation where a tribunal reaches findings of fact that the reason for treatment was separable from both the belief and/or an unobjectionable manifestation and an objectionable one. Any further consideration of Higgs was avoided by virtue of support for the tribunal’s finding that where the Claimant’s belief formed part of the context for the treatment received, it was not the reason.
This is a fascinating belief case that falls squarely within the remit of other belief cases coming out of both the Employment Tribunals and the Employment Appeals Tribunal. It remains to be seen if the Claimant will decide to appeal the outcome again.
