Section 10 of the Equality Act states that a philosophical belief can amount to the protected characteristic of religion and belief. In Gray v Mulberry Company (Design) Ltd, the Court of Appeal held that dismissing an employee for refusing to sign a copyright agreement, which contravened her “moral right” to own the copyright of her creative work, could not constitute a philosophical belief for the purpose of section 10.
At the start of her employment for Mulberry in January 2015, Ms Gray was asked to sign an agreement assigning the copyright of her work to Mulberry. She refused on the basis that it might interfere with her own work as a writer and film-maker. Mulberrry then amended the agreement so that it only applied to work relating to the company’s business.
After refusing to sign the amended agreement, she was dismissed with notice in September 2015. She brought claims of direct and indirect discrimination on the ground of philosophical belief under section 10 of the Equality Act, namely that she had “the statutory human or moral right to own the copyright and moral rights of her own creative works and output”.
Tribunal and EAT decisions
Relying on the test set out in Grainger plc v Nicholson (weekly LELR 147), the tribunal accepted that while Ms Gray strongly believed in the right of ownership to her own creative output, her belief was not sufficiently cohesive to form a “cogent philosophical belief system” and therefore did not fall within section 10 of the Act.
In case it was wrong on that point, it considered her claim of direct discrimination which it rejected on the basis that her dismissal was due to her refusal to sign the agreement and not because she held a philosophical belief.
As for the claim of indirect discrimination, the tribunal found that the requirement to sign the agreement had not put anyone else sharing her belief at a particular disadvantage. In any case, it was a proportionate means of achieving the legitimate aim of protecting Mulberry’s intellectual property.
Dismissing the appeal, the EAT (weekly LELR 590) held that her belief had not attained the “necessary level of cogency or cohesion” to satisfy the requirements of the Grainger test. It also rejected her claim of indirect discrimination on the basis that she could not produce any evidence of any group disadvantage. Finally, the EAT held that, even if the tribunal had found that there was a philosophical belief giving rise to group disadvantage, it was correct to find that Mulberry’s imposition of the requirement to sign the agreement was likely to have been proportionate.
Decision of Court of Appeal
The Court held that there was no causal link between her belief and her refusal to sign the agreement or the company’s decision to dismiss her. Instead, the reason Ms Gray was dismissed was because of her concern about the wording of the copyright agreement. As the wording of a clause in an agreement could not constitute a philosophical belief within the meaning of section 10, her claim could not succeed.
In relation to her claim of indirect discrimination, there was no evidence that any of the 1500 other members of Mulberry’s workforce who may have shared her belief, would have had the same difficulty (in other words, suffered the same disadvantage) as her in relation to signing the agreement. She could not therefore show that the requirement to sign the agreement was intrinsically liable to disadvantage a group that shared her protected characteristic.
Finally the Court agreed with the tribunal that the requirement to sign was a proportionate means of achieving the legitimate aim of protecting the company’s intellectual property.
Mulberry shows how fact-specific the religion and belief cases can be and in order to succeed the belief has to be more than just strongly held. This case shows clearly the difficulty in showing that a belief is sufficient to amount to a philosophical belief which is sufficiently cogent to give protection under the religion and belief provisions of the Equality Act 2010. There have been other press reports about cases which have involved a belief in vegetarianism and no doubt other cases will follow.