Omooba: Seven Years On, and What the Court of Appeal Says About 'Reason Why'

The Court of Appeal dismisses Seyi Omooba's application to reopen her refused permission to appeal, closing seven years of litigation. Lady Justice Falk delivers the clearest modern synthesis of the 'reason why' test in direct discrimination cases.

Miss Seyi Omooba was cast as Celie in the Curve Theatre's production of The Color Purple in December 2018. By late March 2019, following a social media storm over a resurfaced Facebook post expressing her Christian belief that homosexuality is a sin, she had lost both her acting contract and her talent agency. Seven years of litigation followed — ending at the European Court of Human Rights (inadmissible, March 2025) and, now, the Court of Appeal.

Omooba v Michael Garrett Associates Ltd (t/a Global Artists) and anor [2026] EWCA Civ 253 is formally a judgment on an application under CPR 52.30 to reopen a refused permission to appeal. Substantively, it is a careful synthesis of the "reason why" test in direct discrimination claims — and one of the most useful treatments of that test that the appellate courts have produced in some time.

The Facts

On 14 March 2019, the day after the cast announcement, a third party tweeted a screenshot of a 2014 Facebook post in which Miss Omooba had described homosexuality as sinful. The ET described what followed as a "savage and speedy social media storm". The Theatre terminated her contract on 21 March 2019; the Agency followed three days later.

An important and under-discussed fact: Miss Omooba accepted at trial that, having read the script, she would never have played the part in any event. Celie was an iconic gay role; there was a personal "red line". This has obvious consequences for the breach of contract and loss of opportunity claims.

The ET rejected all her claims following a six-day hearing. The "reason why" each contract was terminated did not comprise or include her beliefs or their manifestation. The Theatre acted to deal with the dysfunctional situation arising from the social media reaction and the commercial reality that the production would not succeed. The Agency terminated because continued association would damage its business. Costs were ordered against her. The EAT upheld everything: [2024] EAT 30.

The Application to Reopen

Bean LJ refused permission to appeal in July 2024. Miss Omooba then applied under CPR 52.30 to reopen that refusal, arguing inconsistency with Higgs v Farmor's School [2025] EWCA Civ 109, [2025] ICR 1172, in which a school employee had been found to have been directly discriminated against when dismissed for Facebook posts critical of gender identity teaching. Bean LJ had sat in Higgs and agreed with the lead judgment. The facts were said to be "remarkably similar". The inconsistency was said to be "so striking as to demand the conclusion" of a fundamental misunderstanding.

CPR 52.30(1) permits reopening only where: (a) it is necessary to avoid real injustice; (b) the circumstances are exceptional and appropriate; and (c) there is no alternative effective remedy. The integrity of the earlier proceedings must have been "critically undermined" (Municipio de Mariana v BHP Group plc [2021] EWCA Civ 1156). The application was dismissed unanimously by Falk LJ, Moylan LJ and Sir Geoffrey Vos MR.

The Key Distinction: Two Different Questions

In Higgs, the "reason why" was not in issue by the time the case reached the EAT. It was accepted that Mrs Higgs had been treated the way she was because of the manner in which she had expressed her beliefs — posts described as "florid and provocative". The contested questions were (1) whether that manner of expression was a manifestation of her beliefs at all; and (2) if so, whether the school's response was proportionate. The Court of Appeal held the dismissal was disproportionate on the facts.

In Miss Omooba's case, the "reason why" was the central factual contest from day one. The ET found that neither the beliefs nor their manifestation formed part of the reason for the terminations. Those are findings of fact. The "reason why" question is a question of fact, allocated to the ET, from which appeals are limited to errors of law.

The cases are not in tension. They resolve different questions.

Nine Propositions on the 'Reason Why'

Falk LJ's synthesis of the authorities at paragraph 38 of her judgment is the clearest modern statement of the test, drawing on Nagarajan v London Regional Transport [1999] ICR 877, Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, Fecitt v NHS Manchester [2012] ICR 372, and others:

Section 13(1) EqA requires a determination of the "reason why" a person was treated less favourably.
Except in "criterion" cases, a subjective inquiry is required, usually by inference from surrounding circumstances.
There is a firm distinction between the "reason why" and a motive that may lie behind it.
It is sufficient if the protected characteristic had a "significant influence" on the outcome — i.e. formed a material part of the reason.
A respondent cannot shelter behind concerns about discriminatory reactions by others; a wish to avoid such reactions may be a motivating factor but will not by itself prevent discrimination.
However, there is a distinction between a factor that forms part of the "reason why" and contextual circumstances. The fact that a protected characteristic is part of the circumstances leading to the treatment — or even that the treatment would not have occurred "but for" that characteristic — is not enough.
The "but for" test is therefore insufficient as a standalone tool.
The "separability approach" (discussed in Higgs and Kong) is a helpful tool, not a rule of law: it recognises that distinctions may need to be drawn between a protected characteristic and something separable from it, such as the manner of its expression.
The determination of the "reason why" is a question of fact for the ET.

Proposition (9) carries the most weight in this case. Once the ET had made its findings, there was nothing for the appellate courts to do.

The Separability Approach

The separability approach has occasionally been treated as a doctrine operating in claimants' favour. Falk LJ corrected that. Quoting Simler LJ in Kong: "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."

In Miss Omooba's case, there was nothing to separate: the ET had found that the real reasons were the commercial disruption and reputational risk — not the beliefs at all.

The Dysfunctional Situation

The harder question is whether an employer can terminate because of the reputational consequences of an employee's beliefs becoming public, without that being treated as terminating "because of" the beliefs. The answer, on authority, is yes — if the ET is satisfied that the genuine reason is the dysfunctional situation, not the underlying belief.

Fecitt v NHS Manchester [2012] ICR 372 establishes the principle in the whistleblowing context. Elias LJ held that a dysfunctional situation can be a genuine, separable reason for detrimental treatment, even where the protected act created that situation. Tribunals must apply a "critical, indeed sceptical" eye — but where the ET is satisfied on the facts, the finding will stand.

Applied to belief discrimination: an employer who terminates because the social media fallout from an employee's beliefs has made a production commercially non-viable is not necessarily terminating "because of" those beliefs. The beliefs are part of the context. The chaos they caused is the reason.

A Note on Costs

The costs finding deserves separate attention. The ET ordered costs not primarily on the basis that the discrimination claim had no reasonable prospect — it acknowledged the claim raised a difficult "reason why" issue — but because of Miss Omooba's failure to appreciate what the part of Celie actually involved, her delay in reading the script, and her failure to heed a letter from Alice Walker (the novel's author) in autumn 2019 making the position clear. A drop-hands offer had also been made at that point. Falk LJ was direct: "a significant share of the criticism should be seen as addressed to Miss Omooba's advisers."

Practical Takeaways

"Reason why" is a question of fact. Tribunal findings on causation attract high deference. An appeal premised on disagreement with those findings faces an uphill task; CPR 52.30 even more so.
"But for" analysis will not carry a claim. A protected characteristic can be the circumstantial trigger without being the operative reason. The sequence — belief disclosed, storm created, contract terminated — does not establish discrimination if the ET finds the real reason was the storm itself.
The separability approach is neutral. It can assist claimants (separating a protected disclosure from associated misconduct) or respondents (separating beliefs from the manner of expression or the situation they created). It is a factual tool, not a doctrine.
Higgs concerns proportionality; Omooba concerns causation. They are not competing authorities. Cases involving manifested beliefs may engage either question; it matters which.
Read the brief. Early, thorough case assessment — including what the work actually requires — may have changed the trajectory of this litigation considerably.