The Court of Appeal has delivered its Judgment rejecting in full the claimant’s application for permission to further appeal against the Employment Appeal Tribunal’s decision in the long-running case of Seyi Omooba v (1) Michael Garrett Associates Ltd (T/A Global Artists) (2) Leicester Theatre Trust Ltd.
The Rt. Hon. Lord Justice Bean, of the Court of Appeal, refused the entirety of the claimant’s application for permission to appeal, concluding that such an application did not have reasonable prospects of success.
This brings to an end a case that dated back to 2019, and finally brings closure for Leicester Theatre Trust, who were represented throughout by Howes Percival solicitors.
A reminder of what the case was about
The case involved an actor who in 2019 was cast in the role of Celie in Leicester Curve’s stage production of The Color Purple, widely recognised in part as being about a physical lesbian relationship between Celie and the character Shug.
A historical Facebook post from the claimant (a devout Christian) was re-circulated by a third party (on Twitter (as it was then known)) where she (the claimant) had stated, amongst other things that “I do not believe homosexuality is right”. There then followed a social media “storm” criticising the claimant and her role in the planned production of The Color Purple.
The theatre, after very careful thought and consultation with its stakeholders and the Rights Holders for The Color Purple advised the claimant that her engagement in the production was terminated. Notwithstanding this, the theatre offered unconditionally to pay to the claimant the entirety of the contract sum she would have been paid in any event. This was refused by the claimant.
The claimant’s agents also terminated their relationship with the claimant.
The Employment Tribunal
The claimant commenced ET proceedings in August 2019 against the agency and against Leicester Theatre Trust. She sought to claim the following:
- Direct discrimination because of religion/belief;
- Indirect religious discrimination;
- Harassment related to religion/belief; and
- Breach of contract.
The ET made the following findings:
- That the Claimant, by her own admission, had not read the script, contrary to instructions, at the time of accepting the part.
- That the role did involve the portrayal of a physical lesbian relationship. Immediately prior to the ET hearing, the claimant indicated that had she known (she did not read the script) she would have withdrawn from the role anyway;
- That while the Claimant did suffer some less favourable treatment as a result of hurt feelings at being dropped from the production (even though she would not have played the part anyway), and that the “situation would not have arisen but for the expression of her belief”, it was nonetheless the effect of the adverse publicity from the retweet of her Facebook post, 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.
- Similarly, what had operated on the agency’s mind was not the fact of the Claimant’s belief, but the commercial risk to the business, which “threatened the agency’s survival”.
- That it was not reasonable for the respondents’ actions to have had the necessary “effect” to make a finding of harassment, and that not all breaches of human rights would amount to a violation of her dignity, and thus harassment (which was an argument put forward by the claimant at the ET).
- That there was no breach of contract as the Claimant was in prior repudiatory breach in that she would not in fact have played the part and no damages were due.
- That the actions of the agency were not in breach of contract, either.
The ET dismissed the Claimant’s claims in their entirety. It then went on to consider the issue of costs, where it made, amongst other things, the following findings:
- That the Claimant was aware, before the hearing, that the stage production required Celie to be played as a lesbian, and that she would not have played the part.
- That the respondents had made a “drop-hands” offer to the Claimant, which should have prompted a careful re-evaluation of the likely prospects of success.
- That the Claimant’s harassment claims had no reasonable prospect of success, as the respondents had not been involved in the social media campaign against her;
- That turning down an offer of payment of her contract in full was vexatious and the conduct of the claim was unreasonable in not re-evaluating the case properly.
- That the threshold for making an award of costs was therefore met.
The ET concluded that the claimant should bear the whole of the respondents’ costs, subject to detailed assessment. The ET also ordered the claimant’s representatives to remove the documents of the case from its website (which they had published, with permission, whilst the case was being heard).
The Employment Appeal Tribunal
The claimant appealed against the ET’s decisions both on liability and in respect of costs. She also appealed against the decision on the publication of the case documents.
Following a full hearing before the EAT in December 2023, The EAT Judge, Eady P dismissed the claimant’s appeals in their entirety. In summary, Eady P found:
- The ET’s finding that the reason for the treatment by the respondents was not the claimant’s belief or manifestation of that belief, but rather because of the potential business damage arising from the social media storm and was not therefore direct discrimination, was, according to Eady P considered unassailable;
- The claimant’s argument that any breach of the ECHR amounted to a violation of dignity and therefore would “automatically” amount to harassment, was dismissed;
- The appeal against costs was dismissed;
- The appeal in respect of the restriction on publication of the case documents was also dismissed.
Permission to appeal to the Court of Appeal rejected
In 2024, the claimant made an application to the Court of Appeal seeking permission to appeal the EAT decision.
In a Judgment handed down by the Court of Appeal’s Rt. Hon. Lord Justice Bean on 10 July 2024, the claimant’s application for permission to appeal to the Court of Appeal was refused in its entirety.
The reasons for refusing the claimant’s application for permission to appeal were as follows:
- The ET reached permissible conclusions as to the reasons why the claimant was dismissed, and were entitled to find that the claimant’s religious beliefs and manifestations of those beliefs were not operative reasons;
- As to discriminatory conduct by others, the Rt. Hon. Lord Justice Bean accepted the respondents’ submission that it is open to an employer to take action, in an appropriate case, to address a dysfunctional situation without being fixed with the motivations of third parties;
- There was no prospect of success in the claimant’s claim of harassment. The respondents could not, on the evidence, harass the claimant by “inaction”;
- There was no basis to the claimant’s argument that every unjustified interference in a Convention human right could amount to harassment in law (there was in this case no findings of unjustified interference by the respondents in any event);
- The breach of contract claim was “hopeless”. The ET was entitled to find that the contract was “empty” because the claimant would never have played the part and would have pulled out of the production in any event;
- The Rt. Hon. Lord Justice Bean noted that appeals against costs are rarely open to a successful appeal. The ET was entitled to find that the claim “had no real prospect of success” and in the case of the contract claim was “vexatious and pursued unreasonably”; and
- The document's appeal did not raise any issue of principle and was dismissed. As the law stands, it is not arguable to say that “…a party to whom a bundle of documents is disclosed has an absolute right to publish the whole bundle to the world”
Conclusion
This decision by the Court of Appeal finally brings to an end this long-running case. There is no further right of appeal by the claimant.
The case does however also bring welcome clarification of certain issues arising in direct religious/belief discrimination claims. Perhaps of most importance, is the finding that it is possible still to have properly separable reasons in the decision-making process when faced with issues such as those reported here. In some cases, such reasons are capable of being properly regarded as distinct from the belief itself (or its manifestation and/or the manner of that manifestation). In this case, the potential damage to business arising from the social media storm was one such separable reason, and which the ET rightly found was not because of the claimant’s religion or belief.
Alex Payton, employment lawyer and Partner of Howes Percival acted throughout, with support from the team, for Leicester Theatre Trust in this case, and the firm instructed counsel, Tom Coghlin KC of Cloisters Chambers who represented the client at the ET, EAT and in opposing the application for permission to appeal to the Court of Appeal.
Alex said: “I am thrilled for the client on the outcome of this case. We have worked tirelessly on and off for some 5 years handling this complex legal matter, and it is fantastic to finally achieve such a robust and final decision, which wholly supports the defence we presented from the outset.”
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