“107. We concluded that while the situation would not have arisen but for the expression of her belief, it was the effect of the adverse publicity from its retweet, without modification or explanation, on the cohesion of the cast, the audience’s reception, the reputation of the producers and ‘the good standing and commercial success’ of the production, that were the reasons why she was dismissed. The centrality of authentic depiction of a lesbian role was a key part of the factual matrix. It was not necessary that she should be a lesbian, but it was important that she was not perceived by audience and company as hostile to lesbians. The decision to terminate was made to deal with the dysfunctional situation that arose from the context and circumstances of the public retweeting. The religious belief itself was not the reason why the theatre decided this. It was the commercial and artistic reality of the cluster of factors that [the production] would not succeed. … 110. … what operated on [Michael Garrett’s] mind was not the fact of her belief, but the commercial risk to his business if clients and agents walked. The contract explicitly required the claimant to acknowledge that the agency represented other clients too. The agency had to consider the extent to which other clients would dislike the association with the claimant and whether they would be damaged by association. The claimant had made her view public and had The original has a “not” here but it is common ground that that is a slip. stood by it when it attracted adverse comment. She continued to give interviews (after termination) defending her position. It is hard to see how in the polarised situation that had come about the [Agent] could dissociate itself from the claimant’s public views without picking a side and voicing support not just for her but for the views she expressed, as that was now what she was known for. As for his fear of disintegration of the business, we cannot assess the extent to which his fears were justified, but we accept that they were real, and that they were based on experience and evidence, so not fanciful. That it was the Y Naija story that was the last straw for him confirms this. While initially he believed it was truthful, and that she was fanning the fire when she had been asked to be silent, he did not change his mind with her denial, and it probably matters not whether he believed her. The damage was done, the story had increased the commercial risk. He later said he could not trust her, meaning his belief that she was deliberately stoking the fire. The contract does not have an implied term of mutual confidence and trust as it is not a contract of employment, but did have an implied duty of good faith as it contemplated long-term collaboration and was relational …. He terminated in the belief she was in breach of this by going to Y Naija. The continuation of hostile posts (with an especially unpleasant one on 22 March) suggested the storm was increasing, and whether she did or did not encourage the story, he did not change his view because taking her back in would only renew the threat to the business from consequent loss of agents and clients. The business model included not only the claimant but other artists, and the contract stipulated that she acknowledge that the agency represented and continued to represent other clients. He had also to consider the effect of representing her on the agency’s reputation and the effect [of] that on supply of work. … 112. On the evidence [Mr Garrett] terminated the contract because he thought a continued association would damage the business. The contract was not terminated because of [Miss Omooba’s] religious belief, but because in his mind the publicity storm about her part in The Color Purple threatened the agency’s survival.”
“1. The ‘reason why’ issue was a question of fact for the employment tribunal. Like the President of the EAT, I am satisfied that the ET reached permissible conclusions as to the reasons why the Claimant was dismissed/had her contract terminated and were entitled to find that the Claimant’s religious beliefs and manifestations of those beliefs were not operative reasons. 2. As to discriminatory conduct by others, I accept the Respondents’ submission that it is open to an employer to take action, in an appropriate case, to address a dysfunctional situation without being fixed with the motivations of third parties: see the judgment of Simler LJ (as she then was) in Kong v Gulf International Bank[2022] ICR 1513 . This is how the ET analysed what occurred in the present case. 3. The ET found that the actions of the Respondents did not contribute to, still less create, the hostility to which the Claimant was subjected on social media. It does not appear that before the ET the case was put (or at any rate pleaded) on the basis of harassment by inaction. Quite apart from any legal difficulties this ground has no prospect of success given the findings of the ET that social media hostility to the Appellant was not because of any action on the part of the Respondents. Harassment by inaction is a controversial concept which requires cogent evidence that inaction made the position worse: see Conteh v Parking Partners[2011] ICR 341 at paragraph 33. 4. Ground 4 appears, as the Respondents observe, to put forward an argument whereby every unjustified interference with a Convention right will of itself amount to an actionable violation of the claimant’s dignity. There is no authority to this effect and the harassment provision of section 26 [EqA] cannot be interpreted in this way. Moreover, as the President noted in her judgment there were no findings in this case by the ET of any unjustified interference by either of the Respondents with the Appellant’s rights under Article 9. As to the attempt to rely on the Framework Directive, this was dealt with by the President at paragraph 105 of her judgment which in my view is not arguably open to criticism. 5. The breach of contract claim against the Second Respondents was correctly described as hopeless. The ET was entitled to find that the contract was ‘empty’ because the Appellant would not have played the part, and, if she had not been dropped when she was, she would have pulled out at a late stage and wrecked the production. There was no financial loss and the ET were entitled to find at paragraph 132 of their decision that there was no loss of opportunity to enhance her reputation by performing because she would not have played the part. 6. Appeals from decisions of the ET on costs are rarely open to a successful appeal. In this case the ET were entitled to find that the claims had no real prospect of success and that in the case of the contract claim, it was vexatious and pursued unreasonably. The ET's costs judgment is impressively argued and in my view is unassailable on appeal. 7. (and 8). The documents appeal does not, on the facts, raise any issue of principle. It is plain from EJ Sarah Goodman’s order of8 February 2021 that the reason why the Appellant or CLC on her behalf were originally allowed, or even asked, to host the documents on the website was as a temporary measure to allow public access while the oral hearing was going on. After the hearing was over the documents should have been removed from the website. It was then open to anyone seeking public access to any or all of the documents to make an application to the ET: see paragraph 5 of EJ Goodman’s order. It does not appear that any such application was made. What did happen is that in February 2022 EJ Goodman was asked to revoke her order of8 February 2021 entirely. Her reasons for refusing that application, in particular paragraphs 20 to 23, are an impeccable exercise of discretion. Cape v Dring raises some interesting issues which have yet to be resolved, but as the law stands it is not arguable, in my view, that a party to whom a bundle of documents is disclosed has an absolute right to publish the whole bundle to the world.”
“The Court of Appeal or the High Court will not reopen a final determination of any appeal unless— (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy.”
“…in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances. The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination … the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant’s life a misery. If racial grounds were the reason for the less favourable treatment, direct discrimination … is established.”
“It must be stressed that in considering discrimination cases … the motive for taking a particular course of action, whilst it may be relevant, is not the decisive factor. What has to be inquired into is the reason why a particular course was adopted: the question is ‘Was it on racial grounds?’ If the decision involved drawing a distinction between, for example, coloured and white employees, then it will be discriminatory even though the motive lying behind it did not necessarily involve a prejudice of a racial kind…”
“In our view, if an act of racial discrimination gives rise to actual or potential industrial unrest, an employer will or may be liable for unlawful discrimination if he simply seeks to remove that unrest by getting rid of, or not re-employing, the person against whom racial discrimination has been shown.”
“56. I would endorse and gratefully adopt the passages I have cited as correct statements of law. They recognise that there may in principle be a distinction between the protected disclosure of information and conduct associated with or consequent on the making of the disclosure. For example, a decision-maker might legitimately distinguish between the protected disclosure itself, and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct such as hacking into the employer’s computer system to demonstrate its validity. In a case which depends on identifying, as a matter of fact, the real reason that operated in the mind of a relevant decision-maker in deciding to dismiss (or in relation to other detrimental treatment), common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself. In such cases, as Underhill LJ observed in Page[2021] ICR 912 , the protected disclosure is the context for the impugned treatment, but it is not the reason itself. 57. Thus the ‘separability principle’ is not a rule of law or a basis for deeming an employer’s reason to be anything other than the facts disclose it to be. It is simply a label that identifies what may in a particular case be a necessary step in the process of determining what as a matter of fact was the real reason for impugned treatment. Once the reasons for particular treatment have been identified by the fact-finding tribunal, it must evaluate whether the reasons so identified are separate from the protected disclosure, or whether they are so closely connected with it that a distinction cannot fairly and sensibly be drawn. Were this exercise not permissible, the effect would be that whistleblowers would have immunity for behaviour or conduct related to the making of a protected disclosure no matter how bad, and employers would be obliged to ensure that they are not adversely treated, again no matter how bad the associated behaviour or conduct.”