Facts
In 2019 the Claimant was cast as the main character of the play “The Colour Purple”. This character is in a lesbian relationship. When her casting was announced, attention was drawn to a Facebook post the Claimant made in 2014 in which she stated that homosexuality was wrong and that people could not be born gay. In the wake of the social media storm the Claimant asserted to both her agency and the theatre that this post still reflected her views and stated “The law protects my freedom of expression as well as freedom of thought, conscience and religion”.
The Claimant was informed that she was dismissed from the role in the theatre production. The letter of dismissal confirmed that the character’s same sex relationship was a critical element of the show’s themes and intimate scenes were crucial to the production of the play. The letter also discussed the public criticism of the Claimant’s casting and the risk of groups calling for boycotts of the play. The Claimant was informed that she would receive her full contractual payment.
The Claimant’s publicist released a press statement saying that homophobia is a “natural reaction” to homosexuality, which is wrong. Her agency dropped her as a result despite the Claimant’s assertion that she was not involved in the issuing of this statement.
Employment Tribunal (ET)
The Claimant brought claims of direct discrimination, indirect discrimination and harassment based on religion and belief to the Employment Tribunal. The claims were unsuccessful. The Tribunal found that the reason for dismissal was not the Claimant’s beliefs but rather the commercial viability of the production. There was a possibility that the production would have to be cancelled due to social media uproar and the potential for protest. The same was true for the agency, they were concerned by the possibility of staff and other clients leaving if the Claimant was retained.
The Tribunal, in this case, also made a costs award against the Claimant. These kind of awards are very rare in the Employment Tribunal. The reason for this award was that the claim had no reasonable prospects for success. The Tribunal found that the Claimant admitted to not reading the script before agreeing to the role, despite being asked to do so. The Claimant also admitted that due to the intimate scenes she would have pulled out of the production.
Employment Appeal Tribunal (EAT)
The Claimant appealed this decision. The EAT decided that the key question was the reason for termination by the agency and the theatre. The EAT was in agreement with the Tribunal that these reasons were the commercial success and the professional reputations of those involved in the play. If the same reaction were to be caused by the Claimant’s belief on a topic not related to a protected characteristic the EAT was satisfied the Respondents would have acted in the same way.
The Claimant appealed against the dismissal of her harassment claim as the social media campaign against her resulted in her receiving a lot of abuse, but the EAT noted the Respondent did not act in a way that contributed to this.
The Claimant’s appeal was unsuccessful on all grounds.
Comment
This case gives some clarity to the area of belief discrimination. Prior cases on this issue have focused on the belief itself and if it was expressed in an appropriate or inappropriate manner. This case illustrates that there is a separate category – cases where the reason for dismissal are separate to the belief. There is some concern from commentators that ‘trial by social media’ will become a valid reason for dismissal in other cases. This will remain to be seen. The case of Higgs v Farmor’s School, which relates to similar issues, will be heard by the Court of Appeal later this year and the Claimant in this case has indicated she will also be appealing. Therefore we expect more developments on this area in the near future.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.