Seyi Omooba v Michael Garrett Associates Ltd & Anor

For direct discrimination, the tribunal must identify the decision-maker’s actual reason for the treatment. A protected belief may be an important part of the factual background, without being an operative reason for the decision. Commercial or workplace consequences arising from a public controversy may, on the facts found, be separable reasons.

Harassment requires both the claimant’s perception and an objectively reasonable proscribed effect, assessed in all the circumstances. A respondent is not liable for a hostile environment created by third parties unless its conduct caused or contributed to it.

An employee who would refuse to perform the role contracted for may be in repudiatory breach, defeating a contractual damages claim. Employment tribunals also have a broad, fact-sensitive discretion on costs and on post-hearing access to disclosed documents.

The claimant, an actor, was engaged to play Celie in the stage musical The Color Purple and was represented by the first respondent agency. After a historical Facebook post expressing her Christian belief that homosexuality was sinful was republished, a substantial social-media controversy followed. The theatre terminated her engagement and the agency ended its representation agreement.

The claimant brought Employment Tribunal claims for direct and indirect religion or belief discrimination, harassment and breach of contract. Shortly before the merits hearing, she accepted that she would not have played Celie once she understood that the role required a physical lesbian relationship. The ET dismissed all claims, ordered her to pay the respondents’ costs subject to detailed assessment, and required the removal of hearing documents from her representatives’ websites.

She appealed the liability, costs and documents decisions. The respondents cross-appealed on less favourable treatment, occupational requirement and compelled speech.

1. Appeals dismissed. The ET was entitled to find that the claimant had suffered less favourable treatment at the time she was removed from the role and agency relationship. She then genuinely believed she could play Celie. The respondents’ cross-appeals on that issue would therefore have failed: paras 147–152.
2. The ET nevertheless permissibly found that neither respondent acted because of the claimant’s religion or belief. It had correctly distinguished the factual context from the operative reason. The theatre acted because the publicity crisis threatened the production’s artistic, commercial and reputational viability; the agency acted because it perceived a threat to its business’s survival. The protected belief was not a significant influence on either decision-maker’s reasoning: paras 153–159.
3. The harassment claims also failed. The ET had considered the social-media hostility as an “other circumstance” under section 26(4)(b) of the Equality Act 2010, but found that neither respondent caused or contributed to that environment. Its conclusion that the treatment could not reasonably have had the required effect was open to it: paras 160–161.
4. The claimant’s contention that every unjustified interference with an ECHR right constituted a violation of dignity was academic. On the ET’s findings there had been no unjustified interference with articles 9 or 10: paras 162–163.
5. The theatre could rely on the claimant’s repudiatory breach. From the commencement of the employment contract, her undisclosed refusal to play a lesbian role meant that she would not perform the role she had accepted. That breached express professional obligations and the implied term of trust and confidence. It was a complete defence notwithstanding that the theatre did not know of the breach when it terminated her engagement. She had also been offered the full fee and could not recover reputational or publicity loss for a performance she would not have given: paras 166–171.
6. The ET had lawfully awarded the respondents their whole costs. It was entitled to find that the claims lacked reasonable prospects and/or were unreasonably pursued after the claimant’s position became apparent. It could consider the collateral campaigning role and resources of supporting organisations when exercising its costs discretion: paras 172–185.
7. The ET had power under rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the open-justice jurisdiction to restrict continued wholesale publication of hearing documents after trial. It carried out a permissible balance between open justice, privacy, confidentiality, practicalities and proportionality, while preserving a route for a properly supported application for access: paras 216–228.

• Employment Appeal Tribunal: appeals from the London Central Employment Tribunal dismissed: [2024] EAT 30.
• Employment Tribunal: claims dismissed by a unanimous liability judgment sent on 16 February 2021. The ET ordered the claimant to pay the respondents’ full costs, subject to detailed assessment, by a decision sent on 29 March 2021. It made the hearing-documents order on 8 February 2021.