Expert evidence from a theologian cannot be used in the employment tribunal of an actress who was axed from a play for posting alleged homophobic remarks on social media, a judge has ruled.
Seyi Omooba, 25, was due to play the bisexual lead in a production of The Colour Purple at the Birmingham Hippodrome last year, but was dropped over comments she made in 2014.
Ms Omooba, from east London, is suing the Leicester Curve theatre and Global Artists agency for a total of £124,000 over the dismissal, claiming religious discrimination and a breach of contract.
The 2014 Facebook post read: “I do not believe you can be born gay and I do not believe homosexuality is right, though the law of this land has made it legal it doesn’t make it right.”
Employment judge Tina Elliot ruled in June that two submitted witness reports, written by theatre critic Lloyd Evans and theologian Dr Martin Parsons, were inadmissible as evidence in the case.
Following an appeal, Mr Justice Griffiths, sitting at the Employment Appeal Tribunal, upheld Judge Elliot’s decision on Wednesday in a written ruling.
He said the judge had properly used the “broad discretion” available to her in deciding whether the evidence was “reasonably required to resolve the agreed issues in these proceedings”.
Mr Justice Griffiths said it was an agreed fact that Ms Omooba’s religion is a protected characteristic.
He wrote: “This makes many pages of Dr Parsons’s report apparently irrelevant to any issue between the parties, it being primarily his exposition of ‘Christian doctrine in relation to homosexuality’.
“I do not say that it is without exception absolutely irrelevant to the agreed issues, but most of it is, and it is difficult to sort the wheat from the chaff.”
A report by theatre critic Mr Evans, who reviews plays for the Spectator magazine, cannot be used for evidence either after Judge Elliot said she was not “satisfied that he has relevant expertise”.
Mr Justice Griffiths wrote: “His report is full of opinion, but reads like an opinion or comment piece of journalism, rather than an expert report to a court or tribunal.”
He added that “no amount of reading classics in the original at Oxford, or theatre criticism” would satisfy the court of his relevant expertise.
The ruling added: “An expert does not merely state his own opinion but informs the court or tribunal of the full range of reasonable expert opinion (from his expert knowledge of the field) and the position of his own opinion within that range.
“The court is not obliged to accept any expert opinion and this requirement enables the court or tribunal to perform the exercise of forming its own judgment.”
The hearing is scheduled for February 1 next year after it was delayed because of coronavirus.
