Key takeaways

• Previous cases have considered whether an employee has a protected belief and whether they have manifested that belief appropriately. This case considered a separate issue: whether the reason for the treatment was the potential impact of that manifestation (in this case, the social media storm that followed the discovery of the claimant's Facebook post).
• The outcome of this case is surprising in light of a recent caselaw on how employers should react where conflict arises between differing viewpoints, but the EAT noted that distinctions between the context of and the reason for a claimant's treatment are fact-sensitive and require careful, nuanced judgment. Employers should therefore remain cautious when considering the reaction to social media posts.
• The leading case on this topic, Higgs v. Farmor's School, is to be heard by the Court of Appeal in October 2024. For more on previous caselaw, including Higgs, please see our article here. 

To discuss more about what this case means for you and your business, please get in touch with your usual Baker McKenzie contact.

In more detail

The claimant was a practicing Christian who accepted the role of a lesbian character in a play. When her casting was announced, a Facebook post that she had made five years previously was shared on social media. In that post, she said that she believed homosexuality to be a sin. The reaction to her post on social media was very critical of both the claimant and the production for her casting, and there were concerns that there would be an audience boycott or disruption of the show.

The theatre and her agent terminated their contracts with her, although the theatre offered to pay her what she would have earned under the contract. She brought claims for, amongst other causes of action, direct religion and belief discrimination, harassment, and breach of contract, although she later stated that she would have pulled out of the production due to her beliefs once she learned details of the role.

The employment tribunal rejected her claims. It said that the reason for the termination of her contracts was not her religious beliefs, nor her manifestation of those beliefs in the post, but the social media storm that erupted and the effect that this might have on whether the audience would be convinced by the claimant's performance, on the commercial viability of the production if there was a boycott, or disruptive protests outside or during the play, and the commercial risk to the agency's business. The tribunal also dismissed her harassment claims, finding that neither the theatre nor the agency had caused the social media hostility towards her.

The tribunal also made a costs award against the claimant for the whole of the respondents' costs (subject to assessment) because her claims had no reasonable prospect of success and the conduct of the claims was unreasonable.

The claimant appealed, but the EAT rejected her grounds of appeal. The tribunal had been clear that the reason for the decisions to terminate her contracts were commercial concerns and, in the theatre's case, concerns for the reputation of the producers and the production. The EAT found that the decisions would have been the same if there had been a similar threat arising from an equivalent social media storm for an entirely different belief. While the claimant's Facebook post was part of the context, the tribunal was permitted to and had expressly found that her beliefs were not the reason why those decisions were made.

The outcome is quite a surprising one. Previously cases dealing with manifestations of belief have distinguished between on the one hand, action taken because of belief or an unobjectionable expression of the belief, which would be discrimination, and on the other hand, action taken because of an objectionable manifestation of belief, which would be lawful. The claimant's Facebook post might have been expected to fall into the former category. However, the EAT accepted in this case that the tribunal had carefully directed itself and upheld the tribunal's conclusion that the reasons given by the theatre were properly separable from her belief and its lawful manifestation, as the theatre sought to resolve the difficult and dysfunctional situation in which they found themselves. The EAT noted that distinctions between context and reason are fact-sensitive and can require nuanced judgments. Nonetheless, given the unusual nature of this case, employers should be wary of taking action as a result of social media reactions or third-party complaints.

The respondents were not liable for harassment. To be harassment, conduct must be related to a protected characteristic. While this is broad, this did not mean that the respondents were responsible for the acts of third parties for whom they were not vicariously liable: in this case, public hostility by users of social media. There was no basis to find that either respondent had created or contributed to that.

The EAT also dismissed the claimant's appeal against the costs order.

Omooba v. (1) Michael Garrett Associates (2), EAT