Court of Appeal refuses to reopen discrimination appeal following alleged inconsistency with Higgs decision

Background

The claimant was cast in the leading role of Celie, a lesbian character, in a stage production of the Color Purple. Shortly after the casting announcement, the claimant's previous social media post, in which she expressed her religious belief that homosexuality is sinful, resurfaced and led to significant public controversy.

Consequently, the Leicester Theatre Trust (the Theatre) terminated her contract, citing the negative impact of the controversy on the production’s cohesion, audience reception, and reputation. Her agent, Michael Garrett Associates Ltd (the Agent), followed suit, citing the commercial risks to their business.

The claimant brought claims for direct discrimination, harassment, indirect discrimination, and breach of contract against both the Theatre and the Agent. In her evidence the claimant accepted that had her contract not been terminated, she would have pulled out of the role as she considered it to have crossed a "red line". The employment tribunal dismissed her claims, concluding that the decisions to terminate her contracts were not based on her religious beliefs but on the adverse publicity and its consequences for the production and the Agent’s business.

The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision, and the Court of Appeal subsequently refused permission to appeal. Miss Omooba then sought to reopen the refusal of permission to appeal, arguing that the decision was inconsistent with the Court of Appeal’s earlier judgment in Higgs v Farmor's School [2025] EWCA Civ 109, a case concerning similar issues where the Court found the employee's dismissal for social media posts which could be viewed as homophobic was direct discrimination on the ground of religion or belief. She also argued that the tribunals had misapplied the "reason why" test for the direct discrimination claim.

Court of Appeal decision

The Court of Appeal rejected the application to reopen the appeal, finding no inconsistency with the Higgs decision and confirming that the "reason why" test had been properly applied.

The court emphasised that the "reason why" test requires determining the actual reason for the treatment in question. While the claimant's religious beliefs formed part of the context, the tribunal had concluded that the decisions to terminate her contracts were based on the adverse publicity and its effects, rather than her beliefs themselves. The Court of Appeal confirmed that the determination of the "reason why" is a question of fact for the employment tribunal, and therefore appeals from which are limited to errors of law.

The court also clarified that the Higgs case was factually distinct. In Higgs, the "reason why" question was not contested, and the key issue was the proportionality of the employer’s response to the employee’s social media posts. By contrast, in Omooba, the central issue was the reason for the termination of her contracts. The Court of Appeal concluded that the tribunal’s findings of fact in Omooba were permissible and that there was no error of law.

The court further noted that the high threshold for reopening appeals under the Civil Procedure Rules was not met. This rule allows appeals to be reopened only in exceptional circumstances where it is necessary to avoid real injustice. The court found no such circumstances in this case.

Learning points for employers

This decision reinforces the importance of correctly establishing the reason for the alleged discriminatory treatment and the high bar for reopening appeals. For employers, the case highlights the need for careful, evidence-based decision-making and clear documentation when addressing sensitive issues involving protected characteristics.

For more information or advice please contact Georgia Blesson in our Employment team.