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Detangling direct discrimination, manifestation of belief and lawful limits on protection
Adrian Fryer
The recent case of Omooba v Michael Garret Associates and others has placed religion and belief discrimination back in the spotlight.
To give you a brief overview of the law as it currently stands:
- Direct discrimination occurs where a person is treated unfavourably because of their religion or belief. It is unlawful and cannot be justified.
- Article 9 of the European Convention of Human Rights extends this protection beyond the belief itself to cover manifestations of the belief.
- There are very narrow grounds on which the employer can object to the manner in which the employee manifests their beliefs – in which case any action will be linked to the conduct and not the belief and will not be discriminatory.
In Omooba v Michale Garret Associates and others the Claimant was a Christian. She was due to play the lead role in the Respondent’s production of The Color Purple, a play based on the book by Alice Walker. The book depicts a romantic relationship between two women. The play proposed to include the lesbian relationship. The Claimant was, at the relevant time, unaware of this.
Before rehearsals started, a comment that the Claimant had posted on Facebook some years previously calling homosexuality sinful and urging Christians to stick to their beliefs was retweeted. Following the retweet, the Respondent dismissed her.
The Claimant claimed religion or belief discrimination, harassment, and breach of contract. She acknowledged that, after reading the script following her dismissal, she would not have played the role. The tribunal concluded that, although her beliefs (applying the criteria from Grainger v Nicholson) ‘scrape[d]’ over the threshold of being protected, her claims should fail.
The Claimant appealed.
The EAT, rejecting the appeal, agreed with the tribunal’s conclusions. In terms of direct discrimination, the Claimant was not dismissed because of her expression of her belief but because of the effect of the adverse publicity from its retweet on the cast, the audience, the reputation of the producers and the commercial success of the production. The tribunal had been entitled to reach this conclusion. The message seems to be that if an employer can persuade a Tribunal that it genuinely dismissed an employee because of external pressure, then it won’t have discriminated. Even if the pressure was directly based on the protected characteristic, the dismissal will not amount to discrimination.
This decision sits rather awkwardly alongside Higgs v Farmor’s School which is currently on appeal to the Court of Appeal. In this case, the Claimant was dismissed after making Facebook posts about her beliefs on same sex relationships and trans rights. Her case of direct religious discrimination succeeded.
The difference between the two decisions appears to be that the ‘reason’ for dismissal in Higgs was the Facebook posts manifesting the Claimant’s belief whereas the ‘reason’ in Omooba was the social media storm which arose from them. It is a very narrow distinction.
What these two cases make clear is that further guidance is needed. This will hopefully come from the Court of Appeal when it hears the appeal in Higgs.