Indirect religion and belief discrimination: Did an employee suffer indirect discrimination because of her beliefs about copyright?

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Indirect religion and belief discrimination: Did an employee suffer indirect discrimination because of her beliefs about copyright?

Published 8 November 2019

The Court of Appeal has dismissed an employee’s claim that she suffered indirect discrimination because of her belief in her right to own copyright and moral rights in her own creative work.

THE FACTS

Ms Gray was employed by the luxury designer Mulberry as a market support assistant. She refused to sign a copyright agreement because she said that it interfered with her own work as a writer and film-maker. She continued to do so even when Mulberry had made clear that the obligations in the copyright agreement did not extend to her artistic activities outside work. Mulberry dismissed her.  She did not have sufficient length of service to bring an unfair dismissal claim, and she brought a claim in the employment tribunal for direct and indirect discrimination on the grounds of belief.  She claimed that her belief was in the “statutory or moral right to own the copyright and moral rights of her own creative works and output, except when that creative work or output is produced on behalf of an employer.” As we reported here, her claim and her appeal to the EAT were both unsuccessful. Her appeal to the Court of Appeal has now also been unsuccessful.

The Court of Appeal considered that the question of whether Ms Gray’s belief was a “philosophical belief” was irrelevant because it was not her belief that had put her at a disadvantage. What had led to Ms Gray’s refusal to sign the copyright agreement and her dismissal was not her belief but her concern that the copyright agreement did not protect her own interests. The dismissal and her belief were therefore unconnected. The Court of Appeal commented that a disagreement about the wording or interpretation of an agreement cannot amount to a philosophical belief under the discrimination legislation. 

Considering the question of whether there had been a group disadvantage, as is necessary for an indirect discrimination claim, the Court of Appeal held that, while the belief in a right to own copyright was likely to be a widely held belief, there was no evidence that anyone else who held similar views would have also refused to sign the copyright agreement. Ms Gray was therefore unable to show that the requirement to sign the copyright agreement put people holding the belief at a disadvantage. 

Finally, the Court of Appeal held that, in any event, Mulberry had a legitimate and undisputed commercial interest in owning and protecting its intellectual property rights, and that requiring employees to sign the provisions in the copyright agreement was reasonable. Mulberry had therefore justified its actions.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is a sensible decision. It is useful for employers to know that a belief about the terms of a contract is unlikely to be protected by the discrimination legislation, not least because an employee will have to show a group disadvantage in order to be successful in an indirect discrimination claim. They might be successful if this is a belief about not working on a Sunday, or with pork or alcohol and in such cases the employer will need to justify their requests.

Gray v Mulberry (Design) Ltd [2019] EWCA Civ 1720 (17 October 2019)]

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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