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Former Mulberry employee loses ‘philosophical belief’ discrimination appeal

22 November 2019

The Court of Appeal has dismissed an employee’s claim that she suffered indirect discrimination on the ground of her philosophical belief that she should have the right to own and profit from her own creative works.

Anna Gray was employed by the luxury handbag designer, Mulberry, as a market support assistant and was asked to sign their standard copyright agreement as a condition of her employment.

Mulberry required all their employees to sign copyright agreements which was intended to protect its intellectual property rights in its designs. The copyright agreement stated that Mulberry would own the copyright in any work created by their employee in the course of their employment.

Ms Gray is a writer and a filmmaker outside of work, and refused to sign the agreement due to concerns that its wide drafting left it open to interpretation and therefore interfered with her writing and film-making work.

Following a complaint by Ms Gray, Mulberry agreed to amend the wording of the agreement to ensure it covered only the work carried out in conjunction with its business. Despite this concession, Ms Gray still refused to sign it and was subsequently dismissed by Mulberry due to her refusal to comply with the condition of her employment and Mulberry’s belief that her refusal to sign indicated that she had intentions to put the company at risk and copy their designs.

Ms Gray had not stated at any time during her employment that she had a philosophical belief in protecting her ownership of her artistic designs.

Following her dismissal, Ms Gray brought a claim for indirect discrimination under the Equality Act, on the ground of her philosophical belief. She argued that she had been discriminated against because of her philosophical belief in the ‘statutory human or moral right to own the copyright and moral rights of her own creative works and output.’

The Equality Act prohibits discrimination in the workplace because of religion or belief. The test for whether a ‘belief’ is a philosophical belief for the purpose of discrimination legislation is that the belief must :

  • be genuine,
  • be a belief not an opinion or viewpoint,
  • be weighty and relate to a substantial aspect of human life and behaviour
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Furthermore, indirect discrimination is only established where the employer applies a provision, criterion or practice (PCP) that puts persons who share the philosophical belief at a particular disadvantage in comparison to others who do not share the belief. In other words there has to be a group disadvantage.

The Tribunal and subsequently the Employment Appeal Tribunal dismissed her claim, in part because they held that her belief did not amount to a philosophical belief. Whilst her belief satisfied most of the limbs of the test it was not sufficiently cohesive to form any cogent philosophical belief system.

The Court of Appeal dismissed Ms Gray’s appeal and held that it was irrelevant whether or not her belief amounted to a philosophical belief. Mulberry’s requirement for her to sign the agreement did not put her or others who shared her belief at a disadvantage. None of the rest of the Mulberry workforce had suffered a disadvantage from sharing the belief.

The court held that there was no causal link between her belief and either the refusal to sign the copyright agreement or her dismissal. What led to her refusal to sign the agreement was her concern that the agreement did not sufficiently protect her own copyright, not because of her belief. A dispute about contractual wording cannot amount to a philosophical belief under the Equality Act.

The Court of appeal did not have to rule on whether Ms Gray’s wider belief in a person’s right to own the copyright in their own creative works and output, other than those created during the course of employment, amounted to a philosophical belief under the Equality Act.

However it is likely that an employer would have a legitimate aim in protecting its intellectual property rights and if the provisions of the copyright agreement were reasonable the employer’s requirement for all employees to sign it is likely to be a proportionate means of achieving its legitimate aim of protecting its intellectual property and therefore provide a justification defence to a claim for indirect discrimination.

This case highlights the importance for employers, when considering the implementation of a PCP to assess if it would place any group of workers with a shared philosophical belief at a disadvantage, and if so whether there is a way to achieve the same outcome without causing the disadvantage.

A belief about the terms of a contract is unlikely to be protected under discrimination legislation unless the employee can show a group disadvantage. A case in relation to not working on a Sunday might however be more successful and the employer would need to justify their requirement.

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