Why the case matters

When an employee expresses a belief at work and is dismissed or treated less favourably as a consequence, the question will arise for discrimination purposes, what was the reason for the dismissal or less favourable treatment? Was it the belief or its objectionable manifestation?

While belief and manifestation of belief are protected in law, objectionable manifestation of belief is not. The recent EAT case of Higgs v Farmor School, concerning an employee's vehement disapproval on Facebook of sex education and education on LGBT matters in schools, was an example of objectionable manifestation. The dismissal for this objectionable manifestation did not constitute direct discrimination. 

In the case considered below, the EAT decided that the termination of an actor's engagement was for 'something else', apart from her belief or its objectionable manifestation: the potential business harm arising from a social media storm. Given the prevalence of social media storms in the workplace around political issues at the moment, employers should consider this potential line of argument if facing similar threats to their business. 

Facts 

Ms Omooba (the Claimant) is a Christian and was cast to play Celie in the stage production of 'The Color Purple', which is partly about a physical lesbian relationship between Celie and another character. After the casting was announced, a social media controversy erupted over a past Facebook post made by the claimant 10 years previously, where she expressed the belief that homosexuality is a sin. The social media storm led to criticism of the production team for having cast her. The Claimant made it clear that her beliefs had not changed. In fact, she published a fresh statement in a Nigerian newspaper that homosexuality is a sin. 

The complications and controversy led to the termination of the Claimant's contracts, both with the theatre and her theatrical agent. The claimant brought claims against the theatre and agency for direct discrimination and harassment on grounds of religion and belief. 

Decision

The ET dismissed her claims, finding that the claimant did not suffer less favourable treatment as a result of her beliefs or experienced harassment. Although the situation would not have arisen but for the expression of her belief, it was the effect of the adverse publicity from the social media storm that was the reason why her engagement was terminated. The commercial success of the production and the reputation of the producers and cast were in jeopardy. Likewise, that what had operated on the agency’s mind was not the fact of the Claimant’s belief, but the commercial risk to the business (of other clients leaving), which threatened the agency’s survival.

The Claimant appealed unsuccessfully to the EAT. The EAT dismissed the claimant's appeal, concluding that "the Tribunal’s finding that the reason for the treatment by the respondents had been the potential business damage arising from the social media storm" was "unassailable".

Referring to earlier cases on the distinction between a belief and its objectionable manifestation, the EAT confirmed a further category for consideration, ie, where the reason for the treatment is neither the belief itself nor an objectionable manifestation, but a truly separable feature. 

What to take away

Some commentators have suggested this decision creates too broad a 'get out' for employers wishing to avoid fall-out from controversial beliefs. If the objection to a controversial opinion is always to be justified by invoking third-party backlash, this could be said to undermine freedom of belief and expression in the workplace at the expense of expediency. Nevertheless, this is now an important authority for employers and their advisers to have regard to. Care will be needed as different tribunals may take different approaches to the question of whether certain features of the case are truly separable from the belief being expressed.

Since the Court of Appeal is hearing an appeal from the EAT's decision in Higgs in the autumn, we are likely to get some more clarity on important principles in belief discrimination cases in the not-too-distant feature.

As a more general point about approach, the theatre and agency in this case did not demonstrate a knee-jerk reaction to the events unfolding. Instead, they gave the claimant a chance to reflect and retract her earlier statement, they consulted with other stakeholders, including the rights agency, about alternative courses of action in respect of the production, and came to a considered conclusion. No doubt this even-handed approach assisted them in defending the proceedings.