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Omooba v Michael Garrett Associates Ltd (t/a Global Artists) & Anor
Factual and Procedural Background
The Appellant was an actress engaged by Company B for a leading role and was represented by Company A. She entered into a contract with Company B on 10 January 2019 after an offer in December 2018. A screenshot of a social media post from 2014 in which the Appellant expressed religious beliefs about homosexuality was retweeted on 15 March 2019, precipitating a rapid adverse public reaction. Company B terminated the employment contract on 21 March 2019; Company A terminated its contract three days later.
The Appellant brought claims before the Employment Tribunal (ET) for direct discrimination (section 13 Equality Act 2010), harassment (section 26 EqA), indirect discrimination and breach of contract, and challenged the publication of trial documents. The ET, after a 6-day hearing in February 2021, rejected all claims, ordered costs against the Appellant and ordered removal of certain documents from public websites. The Employment Appeal Tribunal (EAT) dismissed the Appellant's appeal ([2024] EAT 30, [2024] IRLR 440). Permission to appeal to this court was refused by Judge Bean on 10 July 2024. The Appellant applied on 11 April 2025 to reopen seven of eight grounds under CPR 52.30, relying primarily on an asserted inconsistency with Higgs v Farmor's School [2025] EWCA Civ 109, [2025] ICR 1172. Judge Laing ordered a rolled-up hearing of the reopening application and, if granted, the substantive permission application on 13 October 2025.
Legal Issues Presented
- Whether the refusal of permission to appeal by Judge Bean should be reopened under CPR Part 52.30.
- Whether the ET (and EAT) erred in law in distinguishing between the "reason why" and motive in the direct discrimination claim under section 13 EqA.
- Whether the ET erred in law in assessing the harassment claim, including whether inaction by the Respondents created a prohibited environment under section 26 EqA and whether an interference with Convention rights necessarily amounted to a violation of dignity.
- Whether the ET erred in rejecting the breach of contract claim.
- Whether the ET's costs order met the required legal threshold.
- Whether the ET had jurisdiction and properly exercised discretion to order removal/publication restrictions on hearing documents.
Arguments of the Parties
Appellant's Arguments
- The Appellant relied on an asserted inconsistency between Judge Bean's refusal and the decision in Higgs to justify reopening under CPR 52.30, alleging Judge Bean had "wholly failed to grapple with the issues".
- Substantively, the Appellant argued that the ET's findings compelled the conclusion that her protected beliefs or their manifestation were operative reasons for termination (direct discrimination), that the Respondents' inaction contributed to a prohibited environment (harassment), and that the breach of contract and costs conclusions were wrong.
- Attorney Fetto advanced that the ET's factual conclusions involved errors of law such that the "reason why" should be found to include the Appellant's beliefs.
- Attorney Quintavalle argued limitations on ET power to restrict publication relied on specific rules of the Employment Tribunals Rules.
Respondents' Arguments
- The Respondents contended the terminations were for commercial and artistic reasons and to address a dysfunctional situation arising from the publicity storm, not because of the Appellant's protected beliefs.
- They argued the ET and EAT had permissibly concluded the religious belief was part of the factual context but not the operative "reason why".
- The Respondents maintained the ET had jurisdiction under its case management powers (and CPR 31.22) to restrict publication of disclosed documents and that the costs order was justified by unreasonable conduct and lack of prospects.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Higgs v Farmor's School [2025] EWCA Civ 109, [2025] ICR 1172 | Treatment of manifestation of belief and proportionality; distinction from "reason why" issue in current case. | Held not to be inconsistent with Judge Bean's refusal; Higgs addressed manifestation and proportionality rather than the "reason why". |
| Cape Intermediate Holdings Limited v Dring [2019] UKSC 38, [2020] AC 629 | Principles on public access and publication of disclosed trial materials. | ET's removal order was elaborated by reference to this authority on public access and post-hearing publication. |
| Lee v Ashers Baking Co Ltd [2018] UKSC 49, [2020] AC 413 | Free speech/compelled speech issues in expressive conduct cases. | Mooted in cross-appeal but unnecessary to decide given dismissal of appeal to EAT. |
| Kong v Gulf International Bank [2022] ICR 1513 | Separability principle; distinction between protected act/disclosure and associated conduct; employer may address dysfunctional situation without adopting third-party motivations. | Applied to support that an employer's action to address a dysfunctional situation can be separate from third-party motivation. |
| Conteh v Parking Partners [2011] ICR 341 | Harassment by inaction requires cogent evidence that inaction made the position worse. | Cited in assessing the weak prospects of a harassment-by-inaction claim. |
| Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528 | Foundations of CPR Part 52.30 reopening jurisdiction. | Identified as origin of the principles now in CPR 52.30. |
| Municipio de Mariana v BHP Group plc [2021] EWCA Civ 1156, [2022] 1 WLR 919 | Clarification of CPR Part 52.30: exceptional circumstances, integrity of earlier proceedings, "grappling" requirement. | Applied as the leading statement of the high threshold and how to assess reopening applications. |
| R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (Practice Note) [2018] EWCA Civ 860, [2018] 1WLR 5161 | Practice guidance on appellate procedure and consideration of points on permission applications. | Referred to in the context of what constitutes a "clearly articulated" point for reopening. |
| R (Wingfield) v Canterbury City Council (Practice Note) [2020] EWCA Civ 1588, [2021] 1WLR 286 | Practice guidance relevant to reopening and appellate procedure. | Referred to as part of the appellate practice context underpinning CPR 52.30 analysis. |
| Page v NHS Trust Development Authority [2021] EWCA Civ 255, [2021] ICR 941 | Introduction of objective justification in the causation element of section 13 EqA where manner of expression is objectionable. | Discussed in Higgs and in assessing differences between that case and the present "reason why" enquiry. |
| Nagarajan v London Regional Transport [2000] 1 AC 501 | Distinction between "reason why" (grounds) and motive; material influence test. | Cited as foundational authority for the "reason why" inquiry in direct discrimination claims. |
| Din (Ghulam) v Carrington Viyella Ltd [1982] ICR 256 | Employer liability where action taken to remove industrial unrest may itself be discriminatory if earlier discriminatory acts caused the unrest. | Used to illustrate potential employer liability and the need to examine antecedent events. |
| Amnesty International v Ahmed [2009] ICR 1450 | Distinction between motives and grounds; use of inference in fact-finding. | Cited for analytical approach to inferring reasons from surrounding circumstances. |
| James v Eastleigh Borough Council [1990] 2 AC 751 | Criterion-based discrimination examples where subjective inquiry is unnecessary. | Referenced to distinguish "criterion" cases from those requiring subjective inference. |
| Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48, [2001] ICR 1065 | Confirms determination of "reason why" is a factual question for the tribunal. | Relied on to emphasise that the ET's factual findings on causation are decisive. |
| Fecitt and others v NHS Manchester [2011] EWCA Civ 1190, [2012] ICR 372 | Approach where dysfunctional workplace may justify actions; separability of protected act and associated conduct. | Applied as precedent supporting that resolving dysfunction can be a lawful reason distinct from protected acts. |
| Martin v Devonshires Solicitors [2011] ICR 352 | Context for separability discussion in whistleblowing cases. | Referenced in discussion of separability as an analytical tool. |
| IG Index PLC v Cloete [2014] EWCA Civ 1128, [2014] CP Rep 44 | Implicit power of ET to impose restrictions on use/publication of disclosed documents; relation to CPR 31.22. | Cited to support the ET's jurisdiction to order removal of disclosed documents. |
| Khuja v Times Newspapers Limited [2017] UKSC 49, [2019] AC 161 | Comments on publication and privacy rules; limited application to the documents at issue. | Distinguished; not directly applicable to the publication of the type of documents the ET addressed. |
Court's Reasoning and Analysis
The court applied the strict test in CPR Part 52.30 (as explained in Municipio de Mariana and Taylor v Lawrence): reopening requires truly exceptional circumstances, a powerful probability of a significant injustice and no alternative remedy; a judge refusing permission must have "grappled" with the issues. The court concluded the Higgs decision was not inconsistent with Judge Bean's reasons because Higgs concerned manifestation/proportionality rather than the central "reason why" factual enquiry in this case.
The judgment reiterated the settled authority (Nagarajan, Din, Ahmed, Fecitt) that establishing direct discrimination requires determining the tribunal's factual finding of the "reason why" a decision was taken; motive is distinct and often immaterial. The separability approach is a tool, not a rule, to identify whether protected characteristics can be separated from other reasons (e.g. manner of expression or a dysfunctional situation).
The court found Judge Bean had in fact grappled with the essential points, including the EAT's and ET's detailed reasoning, and there was no powerful probability that a different result would have been reached. The reopening application therefore failed at the threshold. On specific grounds the court accepted the EAT/ET findings that the terminations were for commercial/artistic/dysfunctional reasons, that harassment-by-inaction had no cogent evidential basis here and that interference with Convention rights had not been found and does not automatically equate to a dignity breach under section 26 EqA. The breach of contract point was academic on the facts because the Appellant would not in fact have performed; costs were supported by findings of unreasonable conduct; and the ET had jurisdiction to restrict publication (supported by IG Index and CPR 31.22).
Holding and Implications
APPLICATION TO REOPEN REFUSED
Direct effect: Judge Bean's refusal of permission to appeal remains in place, the EAT's dismissal of the Appellant's appeal stands, and the ET's earlier orders (liability findings, costs order and document removal order) are left intact. The court declined to reopen the prior decision under CPR 52.30 and did not identify any need to displace the factual findings of the ET or the EAT's legal conclusions; no new precedent altering the tests for reopening or the "reason why" enquiry was established by this decision.
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