Religion or Belief Claim Against Mulberry Fails

... was not indirectly discriminated against on the ground of her philosophical belief' that individuals should have the right to own and profit from their own creative works.

Gray v Mulberry Company (Design) Ltd

Mrs Gray commenced her employment with Mulberry, as a market support assistant in 2015. Mulberry required all of its employees to sign a Copyright Agreement that contained a confidentiality clause and provided for the employee to assign copyright for any works created during employment to Mulberry. This was a condition of employment.

Mrs Gray signed her contract of employment but she refused to sign the Agreement on the basis that it interfered with her ownership of the intellectual property rights in work created outside of her employment with Mulberry. Mulberry amended the agreement to make it clear that it did not relate to any personal works created. Mrs Gray still refused to sign the Agreement and as a consequence she was dismissed on 16 September 2015.

She brought claims of direct and indirect discrimination on the ground of philosophical belief under the Equality Act 2010. Mrs Gray relied on her passionate belief in the right of the individual to profit from and receive credit for their own creative works.

Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) Decision

The ET rejected the claim. The tribunal held that Mrs Gray's beliefs in relation to copyright were not sufficiently cohesive to constitute a philosophical belief for the purposes of the Equality Act. Her asserted beliefs did not hold up to the test established in Grainger plc and others v Nicholson [2010] namely that belief had to be:

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

Further 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 that belief. The tribunal found that there was no evidence that the PCP put others sharing Mrs Gray's belief at a particular disadvantage.

Mrs Gray appealed unsuccessfully to the EAT and then to the Court of Appeal (CA).

The Appeal

The CA dismissed the appeal and held it was irrelevant whether Mrs Gray's belief amounted to a philosophical belief. Mulberry's requirement for her to sign the Agreement did not put her or other individuals who may have shared her belief at a disadvantage.

The CA noted there was no causal link between the belief and either Mrs Gray's refusal to sign the Agreement or the employer's subsequent decision to dismiss her. What led to Mrs Gray's refusal and consequent dismissal was her view that the Agreement gave too much protection to her employer and did not adequately protect her own interests.

The CA also agreed with the ET that Mrs Gray's belief in relation to copyright did not constitute a philosophical under the Equality Act.

Best Practice

This case highlights the factors to be taken into consideration when deciding whether a particular belief is protected under the Equality Act. There must be a group disadvantage caused by a PCP and a clear causal link between the disadvantage and the belief for an indirect discrimination claim.

Whilst this decision did not go in the Claimant's favour, employers should note that beliefs in relation to climate change and veganism are capable of attracting protection. It is therefore important when considering the implementation of any PCP, to assess if it would place any group of workers with a shared belief at a disadvantage. If so, whether there is any other way to achieve the same outcome without causing the disadvantage.

For further information please contact Joanne Oliver of our Employment Law team on 0117 314 5361, or complete the form below.