In Gray v Mulberry Company (Design) Ltd the Employment Appeal Tribunal (EAT) considered whether an employee’s belief in copyright in her own creative works could amount to a philosophical belief deserving of protection under the Equality Act 2010. Although it had many of the aspects of a philosophical belief, the EAT held that the employee had not done anything during her employment that amounted to an expression of her belief and so it had not attained the required level of cogency or cohesion to amount to a philosophical belief.
Ms Gray was employed by Mulberry as a market support assistant. As a condition of her continuing employment, Ms Gray was asked to sign an agreement protecting Mulberry’s intellectual property. Ms Gray refused to sign this as she was concerned that the agreement would affect her copyright ownership in works created outside of her employment. Mulberry amended the wording to ensure that only work carried out in relation to the business would be caught, but Ms Gray claimed that the agreement was still open to interpretation. As a result of her failure to sign the amended version of the agreement, Ms Gray was dismissed.
Ms Gray brought a claim for discrimination on the grounds that her refusal to sign the agreement was based on her belief in the “statutory human or moral right to own the copyright and moral rights of her creative works and output” which she alleged amounted to a philosophical belief under the Equality Act 2010.
The Employment Tribunal (ET) held that Ms Gray’s belief did fulfil the four of the five key criteria to amount to a philosophical belief as her belief was:
- genuinely held;
- a belief rather than an opinion;
- a belief as to a weighty and substantial aspect of human life and behaviour; and
- worthy of respect in a democratic society.
However, critically, the ET held that the fifth key criterion was not fulfilled as the belief was not sufficiently cohesive to form a cogent belief system and therefore was not protected under the Equality Act 2010. Ms Gray appealed.
The EAT dismissed the appeal and found that the ET had not erred in finding that Ms Gray’s belief lacked cohesion and cogency. The EAT made it clear that, in order to fulfil this criterion, Ms Gray would have had to adequately express or manifest her philosophical belief. Ms Gray did not at any stage make her belief known to her employer. The refusal to sign the agreement did not amount to a manifestation of Ms Gray’s belief even if it was the motivation for her action. The reasoning provided at the time for her refusal to sign the agreement was that Ms Gray would have difficulty in selling her creative work if she signed the agreement. The refusal was therefore purely commercial and to protect her private interests, rather than an expression of her philosophical belief.
This case highlights the need for an employee to adequately manifest a philosophical belief in order for that belief to be protected. It does, however, show how widely the concept of philosophical belief can extend. In different circumstances, where an employee does mention or discuss such a belief at the time, it could amount to a philosophical belief capable of protection under the Equality Act. Other cases have shown that protected philosophical beliefs include a belief in the higher purposes of public service broadcasting and a belief in the proper and efficient use of public money in the public sector.
It should be noted that, although the bar to showing a philosophical belief may be lower than employers might expect, an employee needs to overcome several other hurdles to succeed in a discrimination claim. In this case, the ET and EAT held that any claim for indirect discrimination would, in any event, not have succeeded as the requirement for Ms Gray to sign the intellectual property agreement was a proportionate means of achieving a legitimate aim.
Permission has been granted for an appeal to the Court of Appeal.