Case update (1): Discrimination – Philosophical Belief and Intellectual Property 

Summary:  Did the dismissal of an employee for asserting her moral right to own the copyright to her own creative works amount to discrimination on the grounds of belief?

No, held the Court of Appeal in Gray v Mulberry Company (Design) Limited, available here.

Background:  The Equality Act 2010 provides protection against discrimination which relates to certain listed “protected characteristics“ which people may possess. Religion or belief is one of the protected characteristics and is defined as:

• any religious belief;
• any philosophical belief; or
• a lack of belief.

To be protected in this way, a philosophical belief must satisfy the following criteria:

• it must be genuinely held, although it doesn’t need to be shared by others;
• it must be a belief, not just an opinion or viewpoint based on the present state of information available;
• it must relate to a weighty and substantial aspect of human life and behaviour;
• it must attain a certain level of cogency, seriousness, cohesion and importance;
• it must be worthy of respect in a democratic society, not be incompatible with human dignity, and not conflict with the fundamental rights of others; and
• it must have a similar status or cogency to a religious belief, but it doesn’t need to allude to a fully-fledged system of thought.

Even if a philosophical belief is found to be held by a claimant, in order to establish indirect discrimination the claimant needs to show that the employer has applied a provision, criterion or practice (PCP) that puts a group of persons who share this same philosophical belief at a particular disadvantage in comparison to others who do not share that belief.

Facts:  The employee, Mrs Gray, was a Marketing Support Assistant for Mulberry, the luxury goods company. In this role she had access to Mulberry’s designs before they were launched. The employee signed an employment contract but refused to sign an additional copyright agreement, which would assign to Mulberry the rights to the works she produced while working for them. The employee was concerned that signing the agreement would affect her private work as a writer and film-maker. Draft amendments to the agreement were made but never agreed and, in the end, the employee was dismissed for refusing to sign it.

The employee brought a claim for unfair dismissal for asserting a statutory right (the right to own her own copyright and intellectual property) but when it was established that this right fell outside the scope of the Employment Rights Act 1996, she amended her claim to allege that her dismissal amounted to direct and indirect discrimination on the grounds of an apparently philosophical belief; namely the ‘human or moral right to own the copyright and moral rights‘ of creative works and outputs.

The Tribunal dismissed her claim.  The Tribunal applied the established criteria for a protected ‘philosophical belief’ (as set out under Background above).  The Tribunal did not accept that the employee held her belief as part of a cogent or cohesive belief pattern.

The employee appealed to the EAT, which dismissed her appeal.  The EAT held that the employee’s position was aimed more at protecting the commercial fruits and benefits of her creative activities, rather than as part of any deep-rooted ideal.

The employee appealed to the Court of Appeal. The Court of Appeal dismissed her appeal. The Court of Appeal agreed that the employee’s belief in relation to copyright did not constitute a philosophical belief under the Equality Act 2010.  In any event, the employee had not been put at a disadvantage because of her belief. There was no causal link between her refusal to sign the agreement and her belief. The reason she had refused to sign the copyright agreement was because she wanted to obtain greater protection for her own creative works, not because of her belief.

The Court of Appeal also agreed with the employer’s argument that the provisions of the original agreement were reasonable, and that Mulberry’s provision, criterion or practice (PCP) of requiring all employees to sign it was a proportionate means of achieving the legitimate aim of protecting its intellectual property.

The Court of Appeal also considered whether the employee could show the necessary group disadvantage to succeed with an indirect discrimination claim (see Background above).  Although it was likely that many of the other employees would share the employee’s view point, there was no evidence that any of them had difficulty in signing the agreement.  Therefore the employee was unable to show a comparable group who were at the same disadvantage – which is required for an indirect discrimination claim.

Implications:  This case is helpful as it suggests that purported beliefs which are connected with private, commercial interests may not qualify for protection.  The case also highlights the factors to be taken into consideration when deciding whether a particular belief is protected under the Equality Act 2010, including that a philosophical belief has to be profound, affecting a person’s way of life or perception of the world.  Further, to succeed in an indirect discrimination claim there must be a group disadvantage caused by a provision, criterion or practice (PCP) and a clear causal link between the disadvantage and the belief.

In terms of practical application of the case, we suggest treating all claimed beliefs with care and if a new employee explains that they have beliefs which impact on any aspect of their employment, seek to understand both the nature of the beliefs and whether a hypothetical, or actual group, of others who might share the qualifying beliefs would also be at the same disadvantage.  Further, it will usually be a good idea to consider whether changes could accommodate the individual without unduly compromising the organisation. If there are reasons why changes cannot be accommodated, then objectively consider whether the approach the business is taking is a proportionate means of achieving a legitimate aim.