Gray v Mulberry Co (Design) Ltd

The Equality Act 2010 tests for a protected philosophical belief must be applied with focus on manifestation.

Manifestation requires an act or omission to be intimately linked to the belief; mere motivation is insufficient.

A sole adherent cannot establish indirect discrimination absent evidence of group disadvantage.

An employer requirement to sign a narrowly drawn copyright assignment can be a proportionate means to protect legitimate intellectual property interests.

The claimant, a creative worker, refused to sign a contractual copyright assignment and was dismissed. She advanced a belief described as "the statutory human or moral right to own the copyright and moral rights of her own creative works and output". An Employment Tribunal rejected protection under the Equality Act 2010 and dismissed direct and indirect discrimination claims. The claimant appealed on three grounds: (1) error on the Grainger criteria application; (2) error on group disadvantage for indirect discrimination; and (3) error on justification. The Employment Appeal Tribunal (Choudhury J) heard the appeal and considered manifestation, group disadvantage and proportionality.

1. Outcome: The appeal is dismissed.
2. Grainger criteria and manifestation: The [2010] ICR 360 criteria remain valid guidance for assessing philosophical belief. They must be applied with appropriate restraint so the threshold is not set too high. The critical enquiry is whether the act or omission in question amounts to a manifestation intimately linked to the belief. An act merely motivated or influenced by a belief does not necessarily manifest it (see the discussion of Article 9 jurisprudence and Arrowsmith and Eweida). The Tribunal was entitled to find that the claimant's refusal to sign did not manifest the asserted belief because she never communicated the belief to the employer and gave commercial reasons for refusal (see paras [5.7]; [5.10]; [5.11]).
3. Indirect discrimination and group disadvantage: The statutory framework requires evidence that the PCP puts persons who share the protected characteristic at a particular disadvantage. The Tribunal applied the correct test of whether other holders of the belief would have suffered similar disadvantage. In the absence of any evidence of other adherents or group disadvantage, the Tribunal was entitled to dismiss the indirect discrimination claim. The EAT held that a sole adherent who cannot show group disadvantage cannot succeed on indirect discrimination (see paras [5.14]; discussion of Mba, Eweida and Essop).
4. Justification/proportionality: Even if disadvantage had been shown, the Tribunal reasonably concluded that requiring signing of the (amended) Agreement was a proportionate means of protecting the employer's legitimate aim of safeguarding intellectual property. The amended clause was not overbroad and went no further than necessary to protect the employer's interests. Clause 13 of the contract did not render the Agreement otiose because the Agreement imposed prompt disclosure obligations and clarified employees' obligations (see paras [5.18]–[5.19]).
5. Practical guidance: In assessing philosophical belief focus on manifestation and the factual nexus between belief and the contested act. For indirect discrimination a claimant must ordinarily demonstrate some group disadvantage; sole-adherent cases will usually fail that limb. When a PCP targets legitimate proprietary interests, tribunals should carefully assess whether a tailored contractual condition is a proportionate means.

• Employment Appeal Tribunal: appeal dismissed; judgment delivered by Choudhury J (18 July 2018).
• Employment Tribunal (Bristol): original hearing and dismissal of the discrimination claim (Employment Judge Livesey) (first instance decision cited at paras [4.8]–[5.19] of the judgment).