Belief in copyright over own work is not a philosophical belief

Gray v Mulberry Company (Design) Ltd UKEAT/0040/17/DA

Why care?

The Equality Act 2010 protects individuals from discrimination because of protected characteristics including religion or philosophical belief (or lack of the same). The leading case in this area is Grainger v Nicholson (2010), where the EAT said that to be protected, a belief must:

• Be genuinely held
• Be a belief, not an opinion or viewpoint
• Relate to a weighty and substantial part of human life and behaviour
• Attain a certain level of cogency, seriousness, cohesion and importance
• Be worthy of respect in a democratic society, not be incompatible with human dignity, and not conflict with others' fundamental human rights

There is no requirement that it is "a fully-fledged system of thought", or be held by others, but must have "a similar status or cogency to a religious belief".

The case

Ms Gray was a writer and filmmaker who started work for luxury-goods company Mulberry in January 2015.

Mulberry requires all employees to sign a contract of employment and a separate copyright agreement. Ms Gray signed her contract of employment, but not the copyright agreement, in which she was to assign copyright and other proprietary rights to Mulberry in respect of all works and designs she created in the course of her employment.

She believed that the copyright agreement could cover her activities outside work and told HR that it was "extremely important" to her that she owned "all rights, including copyright, to my own writing, film making and all creative output".

Mulberry told her that it was interested only in that which related to its business, but amended the copyright agreement by adding "which relate to any business of Mulberry Company or any matter arising from your employment with Mulberry" to the relevant clauses. She refused to sign the amended agreement, saying it was too general.

Eventually, she was dismissed in a letter which explained Mulberry believed she had refused to sign because she intended to copy its designs.

Ms Gray brought claims for both direct and indirect belief discrimination. At the employment tribunal, it was agreed that her belief was "the statutory human or moral right to own the copyright and moral rights of her own creative works and output".

However, the tribunal rejected her claim because her belief was insufficiently cohesive to form a cogent belief system, but that in any case, she was dismissed because she did not sign the agreement. This was not direct discrimination and nor was it indirect discrimination, since it was not shown to have put other persons sharing her belief at a disadvantage and even if it had, it was justified.

The EAT dismissed her appeal.

A belief manifested privately may be just as cogent, serious and coherent as a publicly manifested one. However, she had not made her belief known to her employer when she refused to sign the agreement. Her refusal may have been dictated by her belief, but was not a manifestation of it and her objections had appeared purely commercial and designed to protect her own interests.

The tribunal had not made a mistake in deciding that the requirement to sign the agreement put those with the same belief at a particular disadvantage. The correct test was whether others sharing the belief had been put to a disadvantage. There is a need to show group disadvantage, and here there was no evidence to do so. Mulberry could not have anticipated that a group of which it had no knowledge would be adversely affected by being asked to sign the agreement.

In any case, any indirect discrimination was justified to protect Mulberry's own intellectual property. Once amended, the agreement went no further than necessary to protect the company's legitimate commercial interests and it was proportionate to require her to sign as a condition of employment.

What to take away

Beliefs that have been held to be protected by previous cases have included a belief in the higher purpose of public service broadcasting, a belief in climate change and the need to protect the environment, and most recently a belief in Scottish independence.

Unsuccessful claims have failed to achieve protection for a belief that the 9/11 and 7/7 attacks were false flag operations authorised by the US and UK governments, a belief in wearing a poppy in November, and memorably, a belief in bondage and discipline, dominance and submission, sadism and masochism and consensual slavery. (If your Google search has brought you to this paragraph, we're sorry that it may not be what you hoped.)

The case was perhaps particularly hard for the Claimant to win because she had not told Mulberry or her line manager of her belief, either generally or during the meetings about the agreement.

It may be that the Claimant here failed in her claim at least partly because the belief was bound up with her own private commercial interests, and was not "a philosophical touchstone to her life".