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In early 2024, the Employment Tribunal made two notable judgments in the cases of Miller v University of Bristol and Omooba v Michael Garrett Associates Ltd (t/a Global Artists) and Leicester Theatre Trust Ltd, both of which centred on topical discrimination issues.
In this article, our Employment Solicitors examine the case law surrounding the Equality Act 2010.
The Equality Act 2010 prohibits discrimination on grounds of certain ‘protected characteristics’, which include philosophical and religious beliefs.
The Grainger v Nicholson Test
The test for whether beliefs are protected is set out in the case of Grainger v Nicholson. To be protected, a belief must:
A number of cases in recent years have held that even philosophical beliefs considered offensive by some can be protected under the Equality Act, meaning that it is unlawful for an employee to be discriminated against because of those beliefs.
Dr David Miller was a Professor of Political Sociology at the University of Bristol since 2018. Between 2019 and 2021, complaints were made about Dr Miller following his expression of anti-Zionist views, which were ‘well-known’ from the start of his employment.
An initial investigation concluded that there was no formal case to answer as Dr Miller’s views did not amount to antisemitism.
However, following public criticism, the University commenced internal disciplinary proceedings after a further internal investigation found that Dr Miller potentially contravened the University’s Codes of Conduct and Acceptable Behaviour at Work Policy.
The subsequent disciplinary hearing led to Dr Miller’s dismissal for gross misconduct without notice after it was heard that he ‘did not meet the standard of behaviour’ expected of university employees. Dr Miller then unsuccessfully appealed this decision.
As a result, Dr Miller commenced proceedings in the Employment Tribunal for unfair dismissal, wrongful dismissal, harassment and direct and indirect discrimination. The Employment Tribunal ultimately found Dr Miller’s anti-Zionist views did qualify as a philosophical belief and were protected under the Equality Act, and the University of Bristol’s dismissal and rejection of his appeal were directly discriminatory against him.
The Tribunal also found Dr Miller to have been unfairly dismissed, as the University had acted unreasonably by treating his conduct as an adequate reason for dismissal, and the reason for the dismissal was tarnished by discrimination.
However, the Tribunal held that Dr Miller’s conduct had contributed to the dismissal and that any unfair dismissal award should be reduced by 50 per cent.
In 2019, Seyi Omooba successfully applied for the role of Celie, a lesbian character, in a stage production of The Color Purple.
However, following the announcement of her casting, a historic, public Facebook post from Miss Oomba was circulated online. In the post, Ms Omooba expressed her belief that homosexuality was sinful and referenced Biblical texts.
As a result, Miss Omooba’s contracts with her agency and the theatre were terminated. She brought Employment Tribunal claims against both religion and belief discrimination, harassment, and breach of contract.
Miss Omooba’s claims were dismissed, and a costs award was issued against her because her claim had no prospect of success. Miss Omooba admitted that once she had read the script, she would never have played the role and would have resigned.
She subsequently appealed to the Employment Appeal Tribunal (EAT), which dismissed her appeal, finding that the Employment Tribunal had found that whilst the “situation would not have arisen but for the expression of her belief”, the reason for her dismissal was the adverse effect the post had on the production’s publicity, the cohesion of the cast, the audience’s reception, the reputation of the producers and the “good standing and commercial success” of the production.
Therefore, whilst the claimant’s belief formed part of the context, it was not a reason for either her dismissal by the theatre or the termination of her agency contract.
Ms Omooba’s legal representatives said they will be appealing to the Court of Appeal.
Miller serves as further evidence of the strong protections afforded to individuals’ beliefs by way of the Equality Act 2010, and it was particularly noted that in the academic profession in which he worked, free speech and debating ideas were a priority.
The Omooba case, on the other hand, shows that in certain commercial contexts, the protections afforded to individuals by the Equality Act are not without their limits.
Both cases illustrate the practical challenge that employers face in not only managing conflicting beliefs but also striking a balance between protecting individuals affected by specific beliefs and not discriminating against those possessing such beliefs.
Ultimately, the two contrasting cases discussed above demonstrate that employers must tread carefully when dealing with protected characteristics in order to avoid finding themselves on the wrong side of an employment tribunal claim.
If you require advice on discrimination in the workplace, or you have any other queries, please get in touch with our Employment Law team today on:
Jack is a Senior Associate in our Employment Team and Head of Myerson's Hospitality and Leisure sector.
Jack has over 7 years of experience acting as an Employment solicitor. Jack has specialist expertise in redundancy, disciplinary and grievance procedures, terminations, settlement agreements and restrictive covenants.
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