EAT Upholds Decision in Omooba v Michael Garrett Associates Ltd - No Direct Discrimination Found

Citation: [2024] EAT 30
Judgment on

Introduction

The Employment Appeal Tribunal (EAT) decision in Seyi Omooba v Michael Garrett Associates Ltd & Anor addresses several pertinent legal issues relating to claims of direct discrimination, harassment, breach of contract, costs, and the use of disclosed documents after a tribunal hearing. This case centers around the claimant, Seyi Omooba, an actor who was terminated from a stage production and her agent contract after a social media post she made, expressing her belief that homosexuality was a sin, was brought to light. The EAT’s analysis focuses on the reasons behind the respondents’ decisions to end their professional relationships with Omooba and considers whether those decisions constituted unlawful discrimination or harassment based on her religious beliefs.

Key Facts

Omooba was cast to play Celie, traditionally viewed as a lesbian character, in a production of “The Color Purple.” Following the announcement, a 2014 Facebook post by Omooba surfaced, leading to her termination by both the theater and her agency due to the post’s content. Omooba brought claims alleging discrimination, harassment, and breach of contract. Crucially, she admitted before the ET hearing that she would never have played Celie upon reading the script, a fact not known to the respondents at the time of termination. The ET dismissed all claims and awarded costs against her, prompting Omooba to appeal, with further cross-appeals regarding the finding that her dismissal was not less favorable treatment and other related issues.

Several legal principles navigate the EAT’s decision in this case:

  1. Direct Discrimination: The ET’s role was to discern the mental processes behind the respondents’ decisions, determining whether Omooba’s beliefs were an operative reason for their actions. The EAT found the ET correctly distinguished between context and reason, deciding that Omooba’s beliefs were not the reason for her termination.

  2. Harassment: The ET was to examine if the treatment created a hostile environment for Omooba and if such a perception was reasonable. The conduct objected to must relate to the protected characteristic and have either the intention or the effect of violating dignity or creating a hostile setting.

  3. ‘But for’ Test vs. Reason Why: The EAT highlighted the importance of not confusing a ‘but for’ test with the purpose or intention behind an action – it must materially influence the decision-maker, not merely form part of the context.

  4. Breach of Contract: The EAT discussed implied duties in a contract and the concept of repudiatory breach – actions inconsistent with the contract’s fundamental terms.

  5. Costs: The EAT looked at rule 76 of the ET Rules, which allows for costs to be awarded when a party has acted unreasonably or if the claim had no reasonable prospect of success.

  6. Open Justice Principle: Continuation of public access to disclosed documents post-hearing was debated, falling under the ET’s inherent jurisdiction to decide such matters.

Outcomes

The EAT upheld the ET’s decisions, finding there was no direct discrimination or harassment and that Omooba was herself in repudiatory breach of her contractual obligations. Consequently, the costs award made against Omooba was also upheld. The EAT dismissed the appeal against the ET’s order regarding the removal of disclosed documents from public access, noting the ET’s careful balance between the open justice principle and privacy and confidentiality considerations.

Conclusion

The EAT decision reaffirms crucial distinctions between context and reasons in discrimination claims and underscores the systemic approach to the application of the open justice principle beyond the immediate court proceedings. By affirming the ET’s considerations and discretionary powers, the decision solidifies principles around direct discrimination, harassment, breach of contract, costs, and court document publication, providing a robust analytical framework for legal professionals in similar cases.

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