What with God, theatre and lesbians, the recent EAT decision in Omooba – v – Michael Garrett Associates and Another might truly be said to be the case that has it all. Sadly the legal points underneath the facts are rather more prosaic, but this ruling is nonetheless worth noting for their possible practical application in cases with fewer potential tabloid headlines.

A brief look at the background. Ms Omooba is an actor who in 2019 contracted with her agency MGA and the Curve Theatre in Leicester to perform a leading role as Celie in a stage production of The Color (Sic) Purple. Celie is described in the ET’s judgement as an “iconic lesbian role”, a small matter which Omooba had somehow overlooked in any review of the script she had carried out before applying and agreeing to play it. 

When it was announced that the Celie role had gone to Omooba there was a “savage” social media storm aimed at her, the theatre and the agency. This was because some years earlier Omooba had posted on Facebook in very clear terms her view that homosexuality was a sin. Urgent discussions with her were convened by the theatre and the agency but she stuck by that view. Other members of the COP cast expressed their concerns and Omooba was dumped both by the theatre and by MGA (the latter describing her as now “unmarketable”). Both organisations were concerned that continued association with Omooba in the teeth of that storm could do serious damage not just to that particular production but also to their own commercial credibility (and in the case of the agency, entire viability). Omooba said that this was discrimination and harassment on the grounds of her religious belief, and also a breach of her contract to play Celie. 

The fee for the part was less than £5,000 and so the two respondents made a commercial offer to her of the whole sum in return for a “drop-hands” settlement. Omooba refused the proposal because “it was not about the money” or rather (as it turned out) not about so little money. She also sought damages for the injury to feelings and loss of career opportunities which might have arisen to her from her appearance in that role.

Many months into her claim, Omooba finally got round to reading the script properly and realised that because Celie was very clearly and deliberately a lesbian role, she would not have played that part anyway. Her religious principles and views on homosexuality would not allow it. At that point, of course, her claims significantly changed their shape and size, since she was now suing for discrimination and breach of contract in not being allowed to play a role she was not willing to play in any event. That obviously took the middle stump out of Omooba’s claim for any financial or reputational damage caused by the loss of the opportunity, but unfortunately it was not until some time later that this moment of enlightenment on her part was disclosed to the respondents. 

The Employment Tribunal (now 100% backed by the EAT in March) was unimpressed by these claims. They said, summarised, that:

• Omooba could not claim breach of contract for not being allowed to play a role she would never have played. Therefore not even the basic fee was payable to her, let alone anything for loss of reputation. It was she who was in breach of contract, not the theatre or the agency.
• There had certainly been a very unattractive backlash to her comments on social media, but there was no evidence that either of the respondents had had any hand in this (they were at least in part also the targets of it alongside her), so it could not constitute harassment on their part.
• Although Omooba had clearly been dropped after manifesting her beliefs, that manifestation had not been the reason for the termination of her contracts with the agency and the theatre. Instead, that had been the danger which that social media noise plus threatened boycotts by the LGBT+ community and the agency’s other clients posed to them both. Omooba’s publically stating and then re-affirming her beliefs on homosexuality was certainly the catalyst for the treatment she received, but was not the reason for it. 

The key lesson from this is that it remains possible for employers to separate the employee’s manifestation of his/her protected belief from its consequences. While the burden will be on the employer to show how the public reaction poses such a high level of risk or threat to it that dismissal is justified, if it can do so then the path is open to relying on that as the basis for termination. To be clear, however, mere fear or anticipation of how some potentially inflammatory statement or post may go down in the public arena is not going to be enough.

The other interesting factor in this case was the making of a whopping six-figure costs award against Omooba. The ET and EAT found that she had behaved unreasonably in rejecting the offer made in circumstances where she knew that she would never have played the role of Celie and hence knew or ought to have known also that her claim was, putting it at its highest, substantially valueless. The contract claim in particular became a total non-starter. The ET and EAT both gave her and her advisors a comprehensive roasting for the time and costs wasted by the two respondents as a result. 

In particular, the ET formed the view that Omooba’s advisers and funders, two Christian organisations, were much less interested in the actual legal merits of her claim and far more so in using the hearing as a public platform for the espousal of their views on homosexuality and (by implication) the claimed rights of holders of those views to manifest them without adverse consequences, regardless of the harm caused to their employer in the process. The ET saw this as an abuse of the Tribunal regime and dinged Omooba for around £300,000 in costs. While a very significant sum, Omooba had not proved that she could not afford it, and her backers certainly could. 

So in addition to the lesson for employers above, the case fires a large-calibre shot across the bows of any organisation using the ET system more to promote its own agenda than to obtain justice (in the objective sense) for those they assist. Not only must you believe in the legal merits of the claim you are making at the time you make it, but you must continue to re-visit that belief in the light of any new evidence and other developments as the case goes along. This would include, a propos of nothing in particular, your client deciding that she could never play the role you are helping her sue for losing. Exactly the same principle applies to respondents confronted mid-litigation with clear evidence that a previously-held position has become indefensible. In the light of that review, whether you are claimant or respondent, you should think hard (or take some proper advice) about whether an offer you previously rejected in fact now represents something close to your client’s best financial outcome. If it does, it will now take a brave party or backer not to take it.