March’s Employment Law Digest – Case law update

Belief Discrimination –  Christian actor loses religious discrimination appeal

In Omooba v Michael Garrett Associates Ltd and another [2024] EAT 30, the EAT upheld that there was no direct religion or belief discrimination or harassment when a Christian actress was dismissed from a role and her agency subsequently terminated her contract, following a social media storm over her publicly expressed beliefs that homosexuality is a sin and a person cannot be born gay.

Ms Omooba was a Christian, who was due to play the lead role of Celie in The Colour Purple, which tales a romantic relationship between two women. The Respondent wished to include the lesbian relationship in the play, but Ms Omooba was not aware of this.

In the few years previous to the case, Ms Omooba had made her beliefs on homosexuality public on Facebook, stating that it was not right and that she did “not believe that you can be born gay”.

Following the announcement of the cast, an actor had found her post on Facebook and highlighted this on Twitter (now ‘X’). The Respondent then dismissed Ms Omooba after a social media storm resulted.

Ms Omooba then brought claims of religion and belief discrimination and harassment, and breach of contract.

Initially the tribunal dismissed all the claims which Ms Omooba then appealed.

The EAT held that:

• The tribunal had correctly dismissed Ms Omooba’s breach of contract claim. Ms Omooba had been offered the full fee, and she was herself in repudiatory breach of her express obligations.
• The theatre’s decision to dismiss her was due to the adverse publicity, audience reception, and reputation of the producers, not due to her expressing her belief.
• The tribunal had been correct to dismiss the harassment claim, it was found that the public hostility to Ms Omooba was not in any way due to the actions of the respondents and therefore was not reasonable for the conduct to have this effect on her.

Making recordings of tribunal hearings

In Abanda Bella v Barclays Execution Services Ltd and others, the EAT clarified the approach an employment tribunal should take when considering whether it amounts to a reasonable adjustment to grant permission for a disabled litigant in person to record a tribunal hearing.

Mr Abanda Bella was a disabled litigant in person who brought an employment tribunal claim against his employer. A preliminary hearing to consider a strike-out application by the respondents was listed for three days. Mr Abanda Bella applied for permission to record this hearing as he claimed to have issues with his memory, focus and mood. He explained that he would struggle to take his own notes of the hearing but could listen to a recording during breaks and at the end of the day, which would help him to participate and allow him to prepare responses.

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Take Me There

The employment tribunal refused Mr Abanda Bella’s request stating that it was not permitted to make recordings of the proceedings. It then refused his application for reconsideration of this decision, stating that a recording would be of “no assistance” to him.

Mr Abanda Bella appealed to the EAT. The EAT held that:

• The tribunal’s judgment was unlawful.
• The tribunal was under a duty to make reasonable adjustments to assist disabled parties. The EAT noted that, in the vast majority of cases like this, granting permission to record proceedings was unlikely to be disadvantageous to the respondent.
• The right to apply for reasonable adjustments such as recording the hearing should equally apply to a claimant, litigant in person, counsel or any other lay representative.

Parental Leave

In Wright v Hilton Food Solutions the employment appeal tribunal (EAT) considered the interpretation of an employee’s right not to be unfairly dismissed under the circumstances of having “sought to take parental leave”.

Mr Wright worked for the Respondent as a supply chain manager and was made redundant. He brought a claim for unfair dismissal alleging that the real reason for his dismissal was that he had sought to take parental leave. The Respondent applied for his claim to be struck out on the basis that Mr Wright could not have ‘sought’ to take parental leave, as he had not made a formal application for it during his employment.

The EAT, agreeing with the tribunal, held that:

• An employee could show that they had ‘sought’ to take parental leave without actually needing to have made a formal application.
• Whether an employee has ‘sought’ to take parental leave is a question of fact for the employment tribunal having considered all the relevant evidence.

If you would like more information about these cases, please get in touch with Gillian Chinhengo or another of our expert Employment Solicitors.