Remember the Seyi Omooba controversy? Back in March 2019, she was cast as the lead in the Curve Theatre’s production of The Color Purple. Soon after this was announced, a Facebook post from 2014 emerged in which Omooba said that she believed homosexuality was a sin. Many people complained that someone with such beliefs would be cast to play an LGBT character such as Celie (who, after suffering abuse, falls in love with another woman).
Such was the furore that the theatre recast the role, and Ms Omooba was dropped by her agents. She took them both to an Employment Tribunal, claiming discrimination based on her religious beliefs. I wrote about the case at the time, asking whether homophobic views should receive any kind of special protection when veiled by religious belief. I also wondered why a five-year-old Facebook post had been ‘dredged up’ and whether Ms Omooba had ‘kept her views to herself’ or been sufficiently evangelical that it was appropriate that they affected her employment prospects.
Whenever there is a free speech controversy, many people like to parrot a common refrain: “Free speech does not mean freedom from consequences.”
This is true, but it’s also incomplete. Free speech does (or should) mean freedom from some consequences. For example, it can never be appropriate to murder cartoonists because of offensive drawings, or to issue a fatwa in response to a magical-realist novel that insults a particular religion.
Most free speech controversies that splatter themselves over the tabloids and Twitter timelines are really an argument about what consequences are appropriate for the perceived transgression.
Most people agree that the most extreme punishments are rarely, if ever, appropriate. No one should ever be subject to violence because of what they say or believe, and criminalising someone for what they have said should be limited to those who actively incite violence.
Similarly, most people also agree that the most benign consequences are inevitable for any and all offensive speech. You cannot stop people from taking offence — indeed, they have a right to do so.
But there is a grey area when it comes to employment. Contracts between an employer and an employee are private affairs, so the formal free speech protections that bind a state do not immediately apply. But on the other hand, damaging or destroying someone’s livelihood is a heavy consequence for mere words. Allowing employers to police what one says in one’s free time seems a perilous precedent to set.
Employment tribunals have therefore become the free speech front line. In December 2019 Maya Forstater lost a claim at an employment tribunal after she was sacked (or rather, her freelance contract was not renewed) due to her anti-transgender activism. And on 16th February Seyi Omooba lost her claim against the theatre and her agent.
The news reports on the decision were brief, but the entire judgment is available to read online. It runs to 136 paragraphs over 26 pages but is (I think) well-argued. It presents several reasons why the loss of employment and ‘opportunity’ (i.e. the potential for an enhanced reputation and thus more work) was appropriate in this case.
Since these are the kinds of decisions that people on both sides of the argument have an interest in misrepresenting, I think it is worth highlighting some of the crucial elements to the judgment.
1. Seyi Omooba’s beliefs are worthy of protection.
This is the crucial distinction between Forstater and Omooba. In the earlier case, the tribunal ruled that transphobic views were not worthy of respect in a democratic society. By contrast, in paragraphs 93 and 94 the tribunal concluded that Omooba’s views on homosexuality were deserving of protection.
That does not mean that the tribunal ruled that her views were correct or acceptable. Indeed, it specifically noted that her views were offensive. But they also ruled that her Facebook post was an expression of a belief that was protected by ECHR Article 9. She did not advocate conversion therapy or that any harm or harassment should be visited on gay people. She only said that she thought it was sinful. So the tribunal said:
94. After anxious and careful consideration we concluded that the Claimant’s beliefs as manifested in the Facebook post, did scrape over the threshold for protection.
So beware of anyone from the socially conservative side of the debate who might claim that Ms Omooba’s rights as a Christian were disregarded. They were not.
We should be equally wary of anyone from the progressive, social justice side of the argument who claims that the tribunal ruled her beliefs were beyond the pale. That isn’t true either.
Instead, what happened was that the Court engaged in a balancing exercise. It weighed Omooba’s rights against the rights of the theatre and the agency, who were both placed in an invidious position by her unrepentant views.
So why was she sacked?
With the exception of Eastenders and Coronation Street, most actors are employed gig-to-gig rather than on an ongoing basis. So ‘sacked’ is a short-hand that is not quite appropriate to what happened. But Ms Omooba’s contract with the theatre and later her agent were both terminated, earlier than expected and against her will. She was offered (though did not take) the full fee for the role she lost, but her future employment prospects are unquestionably damaged.
The ‘balancing’ exercise the tribunal had to perform was to compare the loss of employment, with the rights of the two businesses (the theatre and the agent) to keep themselves afloat. Commercial considerations do not always factor in human rights cases… but at Employment Tribunals, they are very relevant.
I think the most salient paragraphs in the judgment are these:
69 … There was adverse negative publicity of her involvement in the production, which was expected to grow as time went on, and there was some evidence of potential boycott by LGBT groups. [CEO Chris Stafford] went on: “I regret to say that I consider your continued engagement simply untenable in the circumstances and I that I cannot see that it is practicable for you to undertake the role of Celie”. Her continued engagement would affect the harmony and cohesion of the cast, the audience’s reception, the reputation of the producers and “the good standing and commercial success” of the production.
74. … [Michael Garrett, the agent] explained in evidence that he had built up the agency from nothing over the course of 20 years, five of his twelve staff were gay, that against the social media publicity two of his seven agents who were gay were talking of leaving, and agents took years to train and were hard to replace, he had 334 other clients to represent, and in the past he had seen an agency collapse when one by one its clients quietly left following a social media storm, and could see this happening too when actors did [not] want to be associated with what was now widely seen as bigotry. He feared for his financial viability. Quite apart from that, an ongoing relationship with the claimant would be “uncommercial,” as they would struggle to place her in roles after the outcry.
78. … On 18 April he replied by email saying that the relationship was “beyond repair” because she had not retracted the original Facebook post, she was now unmarketable, and her continued association damaged the agency’s commercial viability.
So for the theatre, Omooba’s continued involvement with the show would have caused it to fall apart. For the agent, continuing to represent the actress could have meant career suicide. These are not frivolous or irrational reasons to terminate a contract, and it was for this reason that the tribunal found in favour of the defendants.
The only thing that bothers me about the judgment is how the idea of ‘unmarketability’ was accepted by the Tribunal. Such an assertion was mere conjecture, not an economic fact established by the agencies proven failure to find more roles, or a proven loss of business attributable to their association with Ms Omooba. The Tribunal is entitled to make inferences, but it seems to me that free speech would be better protected if it required solid evidence on which to base assertions about the threat that controversial people pose to the viability of a business.