London,
03
April
2019
|
19:08
Europe/Amsterdam

How should employers respond when faced with the clash of religious beliefs and sexual orientation?

On 21 March 2019 the Leicester Curve and Birmingham Hippodrome issued an official statement dropping actress Seyi Omooba from the cast of their forthcoming musical production 'The Colour Purple'.

The theatre companies parted ways with Ms Omooba after a post she published on Twitter in 2014 was re-posted by Hamilton actor Aaron Lee Lambert. In her 2014 post Ms Omooba made several comments which have caused offence to members of the LGBTQ+ community, asserting her religious belief that homosexuality is wrong and reinforcing her views with references from the Bible. Mr Lambert called on Ms Omooba to explain whether she still stands by her views given that she was preparing to play an LGBTQ+ character in The Colour Purple.

This is the latest in a string of controversies where an artist has been dismissed or excluded for old tweets which have resurfaced, creating a public outcry that risks overshadowing and damaging the relevant production. That was the fate of Kevin Hart as host of the Oscars and James Gunn as director of the Guardians of the Galaxy franchise. However, those cases centred on attempts at humour that the artists later regretted and have apologised for (in fact Mr Gunn was rehired after his unreserved apology). The situation becomes more complex when the tweet is a religious belief that the artist stands by.

Not just confined to the creative industries, the clash between religious beliefs, freedom of expression and LGBTQ+ rights is a complex issue and has given rise to a number of recent high profile cases;

Former Sheffield University student Felix Ngobe is currently awaiting the outcome of his appeal of a High Court judgment upholding the University's decision to expel him. Similarly to Ms Omooba, Mr Ngole used social media to publicly broadcast his religious beliefs that homosexuality is a sin and reinforced those views with passages from the Bible. As Mr Ngole's course would have led to professional registration as a social worker, Sheffield University raised concerns of Mr Ngole's fitness to practice ('FTP'). The FTP panel decided that by posting these views publicly Mr Ngole had "transgressed boundaries which are not deemed appropriate for someone entering the Social Work profession".

Izoduwa Montague, a mother, has formally complained to the education secretary about a south London primary school which she says forced her son to take part in an LGBT ‘Pride’ event. She is reportedly seeking financial compensation, claiming that her family has been victimised.

Both Ms Montague and Mr Ngole's cases are backed by the Christian Legal Centre, an arm of the activism group Christian Concern. Christian Concern publicly lobbies against changes in the law promoting LGBTQ+ rights, and are linked to a number of groups advocating for so called "gay cure" conversion therapy. Christian Concern was co-founded by Pastor Ade Omooba MBE, who attended an internal appeal hearing at Sheffield University as representative of Mr Ngole. Pastor Omooba is also the father of actress Seyi Omooba so a similar legal challenge may be on its way from Ms Omooba to the Leicester Curve/Birmingham Hippodrome.

The Equality Act 2010 prevents employers from directly or indirectly discriminating against applicants and "employees" because of their religious beliefs (the definition of employee for these purposes is wide and includes workers and self-employed persons contracted to perform the work personally). The balance between upholding the rights of religion versus sexual orientation is a hard line to tread, and each case will turn on its facts. Companies should take care not to discriminate against an employee purely for holding certain beliefs; the question is whether those beliefs manifest themselves in inappropriate conduct. Previous cases in this area have emphasised that LGBTQ+ inclusion is (unsurprisingly) a legitimate aim, but action taken to enforce such policies must be proportionate when it impacts on staff who hold particular religious views.

One potentially relevant example is the case of Apelogun-Gabriels v London Borough of Lambeth. Mr Apelogun‑Gabriels printed out a range of Bible extracts which his employer considered homophobic. He was dismissed for distributing these extracts to members of a work‑based prayer group and other "interested parties". It was Mr Apelogun-Gabriels' conduct in distributing homophobic literature that was the reason for his dismissal, not his religious beliefs. However, were that to be applied to Ms Omooba's predicament, arguments might arise over whether Ms Omooba's tweet crossed the line into homophobia. It may also be relevant that the distribution occurred 4 years prior to the start of her employment.

Companies who wish to promote equality and diversity may find it beneficial to set out their ethical values in a code of conduct which is actively distributed to all those who work within their organisation, expressly covering social media and what the company views as unacceptable behaviour. They might also consider asking employees to review their social media history and check for posts that no longer reflect the employee's current views. As well as providing a useful reminder and deterrent to inappropriate behaviour, this will be a relevant consideration (although not a deciding factor) in a subsequent claim.

For instance, in the case of Ladele v Islington Borough Council a public authority employer's decision to dismiss an employee who refused to perform civil partnership ceremonies on the grounds of her religious beliefs was held to be justified. The employer's "Dignity for All" policy was found to be of overarching significance, with fundamental human rights, equality and diversity implications.

Cases involving such clashes of rights are likely to continue to arise – and social media will no doubt continue to play a significant role.

If you would like any additional information, please contact Jane Amphlett.