Belief, context and causation: Lessons from Omooba

The Court of Appeal's decision in Omooba v Michael Garrett Associates Ltd [2026] EWCA Civ 253 is a useful reminder that just because a protected characteristic features in the background of a dismissal, it does not mean it caused that dismissal.

What happened?

Ms Omooba, an actress, accepted a contract to play an iconic gay character in a theatre production. Shortly after her casting was announced, historic social media posts in which she had expressed her religious belief that homosexuality is sinful resurfaced online, prompting a significant public backlash.

Both the theatre and her agency, MGA, terminated their contracts with her. Ms Omooba brought claims of direct discrimination, harassment, indirect discrimination and breach of contract, all of which failed at Employment Tribunal and on appeal to the Employment Appeal Tribunal.

What did the Court of Appeal decide?

Following the EAT's decision, Ms Omooba applied for permission to appeal to the Court of Appeal, which was refused. She subsequently applied to re-open that refusal under CPR 52.30, arguing that the decision to refuse permission was inconsistent with the Court of Appeal's later decision in Higgs v Farmor's School. 

The Court of Appeal rejected that application. It found that the judge who had originally refused permission had not failed to grapple with the issues raised, and that he had properly considered the relevant grounds of appeal against the ET's and EAT's decisions, which disclosed no error of law. In doing so, the Court provided helpful commentary on two important legal principles.

1. Distinguishing Omooba from Higgs v Farmor's School

First, it distinguished Omooba from Higgs. In Higgs, the reason for the employer's actions was not in dispute – the issue was whether the employee's posts were a manifestation of protected belief and whether the response was proportionate. 

In Omooba, the central question before the ET was why the contracts were terminated in the first place. The ET found (and the EAT upheld) that the terminations were driven by commercial reality, not by Ms Omooba's religious belief. The theatre terminated her contract because the production would not succeed. MGA terminated her contract because continued association with Ms Omooba posed a serious risk to its business. Her belief was part of the background, but it was not the reason the contracts were ended.

2. The "separability" principle and how it applies to protected belief cases

Second, the Court's commentary confirmed a "separability" principle: employers can distinguish between a protected characteristic and the reason for a decision, even where the characteristic features in the surrounding circumstances.

What does this mean in practice?

Whilst the Court of Appeal did not make distinct findings on the specific factual issues in Ms Omooba's claims, its commentary on the "reason why" test and the separability principle offers useful guidance for employers.

If you want to rely on a separability argument, you need clear, contemporaneous evidence showing that the real reason for your decision was not the individual's protected belief or the way they expressed it. Vague or retrospective explanations will not be enough, and getting your documentation right at the time of the decision is essential.

• Record your reasons at the time: Vague or retrospective explanations will not be sufficient. Decision-makers should document the specific commercial, operational, or reputational rationale driving a termination decision at the point it is made – not after a claim has been issued.
• Distinguish between context and causation: The fact that a protected characteristic is present in the background of a situation does not mean it caused the decision. Employers should be able to articulate clearly (and evidence) what actually drove their decision, separate from any protected characteristic that may have featured in the circumstances.
• Do not conflate the expression of a belief with the belief itself: The distinction drawn between Omooba and Higgs is instructive: where the reason for termination is genuinely commercial rather than a response to the individual's protected belief, that distinction must be demonstrable on the facts.
• Seek advice early: Where a dismissal involves any element of reputational or commercial risk connected to an employee's publicly expressed views, taking legal advice before acting (and before documenting your rationale) will significantly reduce your exposure to a discrimination claim.

The broader takeaway is that getting the process and the paperwork right at the time of the decision is not merely good practice, as in cases like this, it is the difference between successfully defending a claim and not. If you would like to discuss the above steps further, please contact our specialist employment team for more information.