Issues can arise in the workplace when the expression of employees’ beliefs gives rise to conflict. We look at the recent Employment Appeal Tribunal case of Omooba v Michael Garrett Associates Ltd, which concerned an actress who lost a role after a Facebook post in which she expressed her religious beliefs about homosexuality surfaced.
Religion or belief is one of the protected characteristics in the Equality Act, and it is therefore unlawful for employers to treat staff less favourably because of their religion or belief.
Of course, it is sometimes the case that the religious or other beliefs held by a particular employee will either come into conflict with the rights of other staff, or cause offence to others. In such cases, employers must carry out a careful balancing act, on the one hand trying to protect the rights of their staff to express their beliefs, whilst also being mindful that the expression of those views may offend others, or amount to discrimination against other staff.
Employment tribunal cases in this area have turned on the question of whether the employee is simply expressing their belief in a reasonable way (in which case it would be discriminatory for the employer to discipline the employee), or if they are, instead, doing so in an inappropriate or objectionable manner – in which case it may be lawful for the employer to discipline that individual.
Another tricky area that can give rise to disputes is where an employee has expressed a belief that has given rise to negative consequences for the employer, and they are subsequently dismissed or disciplined. In such circumstances, if the employer can show that the actual reason for the dismissal was those negative consequences, rather than because of the belief that the employee was expressing, then that will not amount to discrimination.
In the recent case of Omooba v Michael Garrett Associates Ltd, the Employment Appeal Tribunal (EAT) had to grapple with this question. Ms Omooba is a Christian actor. In a Facebook post in 2014, she stated that homosexual desires are a sin and that a person cannot be born gay. In January 2019, Ms Omooba was cast to play a lesbian character, Celie, in Leicester Theatre’s production of The Color Purple. In the role, Celie has a sexual relationship with another female character.
The Facebook post latterly caused a social media storm, and, shortly afterwards, the theatre and Ms Omooba’s agent, Michael Garrett Associates Ltd, terminated her appointment. Ms Omooba brought a claim in the Employment Tribunal alleging, among other claims, that her role was terminated because she had expressed her religious beliefs about homosexuality in her Facebook post in 2014.
The Tribunal found that the Theatre was concerned that, as a result of Ms Omooba’s Facebook post, she would not be able to play the part convincingly (in the eyes of the audience), and that the performance may be boycotted or disrupted by protesters. The Tribunal held that there was a real risk that if Ms Omooba had stayed in the part, the production would have to be cancelled as a result of the protest. It decided that Ms Omooba’s contract had been terminated for these reasons, rather than because of the beliefs that she had expressed.
Ms Omooba subsequently appealed this decision to the EAT. She argued that, whilst the theatre and the agency may have had other reasons for ending her contract, their real motivation had been what they saw as her objectionable belief.
The EAT rejected this argument. It noted that, for Ms Omooba’s claim to succeed, she must demonstrate that her religion or belief had at least a significant influence on the decision to dismiss her, and that it is not sufficient for it to simply be part of the context. It noted that the correct test to be applied is to ask what decision would have been made in the same circumstances, but where the trigger for the social media storm was not an expression of the protected characteristic in question.
The EAT found that, if the same social media storm (with threats to boycott the play, and so on) had arisen because of the expression of an entirely different belief, the theatre and agency would have made the same decision, and so the decision was not influenced by Ms Omooba’s expression of her belief.
Whilst this case is very fact sensitive and cannot be used as a general guide by employers, it does serve as a reminder that, if the expression of a belief does have negative consequences, there may be options available to the employer to deal with the fall out that will not later lead to a finding of discrimination in the Employment Tribunal.