Tariq Sadiq bags win for Mulberry in first philosophical belief claim considered by Court of Appeal.
Cases testing the scope of what amounts to a philosophical belief been considered by the courts recently. In Gray v Mulberry Company (Design) Ltd the Court of Appeal found that a claimant's belief in the statutory human or moral right to own the copyright and moral rights of their own creative works and output did not amount to a philosophical belief. Tariq Sadiq represented Mulberry.
Ms Gray who is employed as a market support assistant for Mulberry refused to sign a standard copyright agreement which provided for the employee to sign copyright for any works created during the course of her employment to Mulberry. Ms Gray refused to sign because of her concerns that it would interfere with the ownership of her own works as a writer and film-maker created outside of her employment. Mulberry amended the copyright agreement to make it clear that the only works created during employment with Mulberry was covered, but she still refused to sign and was ultimately dismissed. Ms Gray had not referred to her philosophical belief at the time she refused to sign the copyright agreement. She brought claims of direct and indirect philosophical belief discrimination. The ET and the EAT (the President, Mr Justice Choudury presiding) both found that her asserted belief was not sufficiently cogent or cohesive to amount to a philosophical belief under the Grainger v Nicholson Plc guidelines. Even if it had been, there was no indirect discrimination since Ms Gray on the evidence was the only known person to hold such a belief. Therefore, she could not show group disadvantage The President of the EAT did however give leave to appeal to the Court of Appeal since the case raised issues of fundamental public importance and had not been considered by the Court of Appeal before.
In the Court of Appeal, Counsel for Ms Gray conceded that her belief was subject to the important caveat “except when that creative work or output is produced on behalf of an employer”. It went on to find that the asserted belief did not constitute a philosophical belief under the Equality Act 2010. Even if it had been, Ms Gray was simply unable to show group disadvantage since there was no evidence that anyone else who held the same views would also have refused to sign the copyright agreement. Further, there was no causal link between the belief and Ms Gray's refusal to sign the copyright agreement and ultimately her dismissal. Ms Gray had refused to sign the agreement because she was concerned that it would interfere with her own private business interests, which was not connected with her asserted belief at all. Finally, Mulberry had an obvious commercial interest in owning and protecting its intellectual property and the copyright agreement for that purpose had been unanimously acceptable to all its other 1500 employees. Therefore, Ms Gray’s dismissal was justified.
The case highlights that 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.
In the EAT, the President had said that the correct approach was to focus on the manifestation of the belief when determining whether there was a protected belief. Since Ms Gray had not asserted her claimed belief at the time of refusing to sign the copyright agreement, it could not amount to a protected belief. The Court of Appeal, with respect, side stepped that issue and dismissed the appeal on other grounds but said in respect of the President's approach, “Our judgment is not to be taken as endorsing this approach.” Practitioners are left with a binding EAT authority – manifestation of the belief is a requirement in determining a protected belief, until the Court of Appeal says otherwise.
Whilst this decision did not go in the claimant's favour, beliefs in relation to climate change, veganism and even the higher purpose of public sector broadcasting have amounted to protected beliefs. It is therefore important to assess whether any PCP would place any group of workers with that belief at a disadvantage.