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Things remain “all quiet on the western front” in the Pearson-Batt household. Although, we have finally gotten round to booking some trips for our upcoming Italy trip – a walking tour of Milan and a trip up the Duomo for those interested.

The most exciting thing to have occurred recently was that I managed to catch a glimpse of the aurora borealis the other week. It was incredible and I couldn’t really believe my luck. I’ve been saying for the last few months that we should plan a trip to Iceland this year because it’s the peak of the solar cycle this year (how I knew that, I don’t know) but who needs Iceland when you’ve got the grand old sights of Nottingham?

Paul very much missed the spectacle, despite me waking him up to tell him. I was met with a gruff response and him rolling over back to sleep and a bark from the dog. Oh well, more for me!

Now, those who know me, know that my big love in life is theatre – the more musical, the better (and in fact, this weekend we’re going to London for my belated birthday treat.  Hadestown and Standing at the Sky’s Edge if you’re asking).

Unfortunately, it’s not often that musicals cross with employment law (maybe 9 to 5 or Legally Blonde The Musical – both great by the way).

BUT in the recent case of Seyi Omooba v Michael Garrett Associates Ltd (t/a Global Artists) and Leicester Theatre Trust Ltd, my two worlds collided.

The case involves the actress Seyi Omooba who is Christian and who had landed the leading role of Celie in The Color Purple musical that ran in Leicester during the COVID-19 pandemic (guess what? I saw it. It was brilliant).

Part of the story of The Color Purple revolves around Celie’s physical relationship with another female character, Shug Avery. When Ms Omooba’s casting was announced there was something of a furore on social media after it was discovered she had posted on Facebook 10 years earlier that she believed homosexuality was a sin. This led to criticism of the production team for hiring an actress who held these views to play a character who had a physical relationship with somebody of the same sex. For her part, Ms Omooba made further statements to a Nigerian newspaper to the effect that she still believed that homosexuality was a sin.

The social media storm got worse and ultimately led to the termination of Ms Omooba’s contract, both with Leicester Curve and her agent. Although she was paid her full appearance fee for the show. She brought claims against the theatre and her agent for direct discrimination and harassment on the grounds of religion and belief.

The Employment Tribunal dismissed the claims. They found that the actress had not suffered less favourable treatment as a result of her beliefs, nor had she experienced harassment. The Tribunal found that it was the effect of the adverse publicity from the social media storm that was the reason for terminating her contract – not the views that she herself had expressed, which were protected.

Ms Omooba appealed but the EAT were quite clear in dismissing her appeal, finding that the Tribunal’s decision and reasoning was “unassailable”. The EAT were clear themselves that the termination of her engagement was for “something else” other than her belief and/or the fact it had been manifested objectively. The EAT found that the potential business harm arising from social media was the real reason for the engagement being terminated and that was not, itself, discriminatory.

Quick note: Remember, beliefs and manifestations of beliefs are protected under the Equality Act (subject to meeting certain legal thresholds) but there is no protection where the belief or the way in which it manifests are objectionable.

What can we learn from this case then? Well, employers may be able to defend claims for discrimination if they take action against employees because of adverse publicity caused by somebody expressing protected beliefs on social media. BUT we need to be really careful about saying that. We, as lawyers and HR professionals, shouldn’t have a knee jerk reaction and think “oh somebody on social media is upset so we can sack this person”.

And actually, that’s quite a good takeaway here: as employers we should avoid knee jerk reactions. Both the theatre and Ms Omooba’s agent avoided doing so – they gave her the chance to reflect on her statements and retract them. They also consulted with other stakeholders (including the rights holder for the Color Purple) and came to a considered conclusion that it just wasn’t go to work out. This ultimately helped them in defending the claims.

We need to keep our eyes closely on the Court of Appeal which is due to provide some more clarity on these sort of issues in the autumn when they hear the case Higgs v Farmor School (that case involves an employee posting about their disapproval of sex education and education on LGBTQ+ matters in schools). We will, of course, keep you fully up to date on that!

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