Employees and protected beliefs - where to draw the line?

Posted: 27/03/2024

Treating someone less favourably because of their protected belief, or the manifestation of that belief, amounts to direct discrimination under the Equality Act. This can become tricky for employers where an employee’s belief is controversial or conflicts with the legitimately held beliefs of other employees – see recent cases involving those expressing gender-critical views, for example. 

The recent case of Omooba v Michael Garrett Associates (T/a Global Artists) and Leicester Theatre Trust considers whether an employer can legitimately cave in to a social media campaign and dismiss an employee with controversial views – even if those views are protected beliefs under the Equality Act - or whether hard cases make bad law?

The findings of the Employment Appeal Tribunal (EAT) in this case suggest that the difficulty in determining whether the reason for a decision is the employee’s belief (or the manifestation of that belief), or whether there is a truly separable reason, such as a social media ‘storm’, will be the next battleground on controversial views. 

Background

Ms Omooba is an actor. In 2019 she was given the leading role of Celie in a stage production of ‘The Color Purple’, a play which is recognised (at least in part) as being about a physical same-sex relationship. After Ms Omooba was cast, a social media storm blew up over a Facebook post she had written many years earlier where she had expressed her religious beliefs about same-sex relationships.

Ms Omooba refused to retract her Facebook post or issue a statement that distanced herself from it. The theatre decided that the whole production was under threat because of the social media storm, due to the risk both of demonstrations and a potential boycott from theatregoers. As a result, the theatre terminated her contract, and Ms Omooba’s agent, worried that other clients would leave their agency if Ms Omooba remained on the books, dropped her. 

Ms Omooba believed that there were different ways in which the character of Celie could be played, but had not in fact read the script for this production.  

She brought claims against both the theatre and her agency, including for direct discrimination.

The decision

In a direct discrimination claim, the key question is why the claimant has been treated in the way they have complained about. If the reason why was her religious belief, or any lawful manifestation of it, it is direct discrimination; there is no defence. 

However, if the reason why was neither the belief nor her expression of it, then there is no claim. In this case, the reason why was held to be the commercial and artistic reality of the production and the publicity storm about her part. This suggests that the tribunal can legitimately distinguish between the beliefs themselves and any controversy that follows from the expression of those beliefs. 

The Employment Tribunal expressly found that Ms Omooba’s beliefs, and the way in which she expressed them, were not the reason for her treatment and dismissed her claim. Her appeal to the EAT was unsuccessful. The result of this is that if an employer can persuade any tribunal that it genuinely dismissed an employee because of external factors, a direct discrimination claim will fail, even if those external factors, such as pressure from a third party, were directly based on the protected characteristic.

In dismissing the appeal, the EAT noted that the facts of this case were unusual; but it means that it is still possible to separate different features of decision-making, and to argue that a dysfunctional relationship is distinct from a protected belief or its manifestation.

The Omooba decision is the latest in a long line of cases on issues relating to discrimination because of religion or belief, and this is not likely to be the last word on this issue. Employers should remain very wary as they continue to struggle with the question of how to deal with employees whose deeply held, protected, but potentially divisive beliefs, can create controversy in the workplace. 

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