Gray v Mulberry Company (Design) Ltd

The Court of Appeal dismissed the claimant's appeal against the Employment Appeal Tribunal's dismissal of her discrimination claim. The key legal issues concerned whether the claimant's asserted belief (a moral or statutory right to own copyright in her creative works, subject to the course of employment exception) qualified as a protected "philosophical belief" under the Equality Act 2010 and, if so, whether the employer's requirement to sign a copyright assignment agreement amounted to indirect discrimination and could be justified. The court endorsed the need for a clear definition of the belief and applied the Grainger criteria (in particular the requirement of cogency, seriousness, cohesion and importance) while emphasising causation and manifestation: there was no causal link between the protected belief and the claimant's refusal to sign, no evidence of group disadvantage, and in any event the employer's requirement was a proportionate means of protecting its legitimate intellectual property interests.

Background and parties: The claimant was employed as a Market Support Assistant by a design company which required employees to sign a contract and a separate Confidentiality and Copyright Form assigning future copyright. The claimant refused to sign the copyright form because of her concern to retain rights in her creative work and was dismissed. She brought proceedings alleging unfair dismissal and then (by amendment) discrimination on grounds of philosophical belief under the Equality Act 2010.

Procedural history: The claim was heard by an Employment Tribunal (Bristol) which rejected that the claimant held a protected philosophical belief of sufficient cogency, and rejected direct and indirect discrimination claims (the latter on lack of group disadvantage and on justification). The claimant's appeal to the Employment Appeal Tribunal was dismissed by Choudhury J. Permission to appeal to the Court of Appeal was given on three grounds.

Relief sought: The claimant sought a declaration/remedy for discrimination (direct and indirect) on grounds of belief and related unfair dismissal consequences.

Issues framed:

• Whether the claimant's belief (that creative persons should own copyright in their works, except where created in the course of employment) met the Grainger criteria to amount to a protected philosophical belief under ss 4 and 10 of the Equality Act 2010;
• Whether the employer's provision, criterion or practice (requiring signing of the Copyright Agreement) put others sharing that belief at a particular disadvantage (the group disadvantage requirement under s 19(2)(b));
• Whether the PCP could be justified as a proportionate means of achieving a legitimate aim (protection of intellectual property).

Court's reasoning: The Court of Appeal emphasised the necessity of precisely defining the belief relied on. It accepted the Employment Tribunal's finding that the claimant genuinely held strong views about an author's right to copyright, but held that the immediate cause of her refusal to sign was a dispute about the specific wording and interpretation of the agreement rather than the protected belief itself. Consequently there was no sufficient causal link between the belief and the refusal to sign. On indirect discrimination, the tribunal had correctly applied the group disadvantage test: there was no evidence that other employees who shared the belief were put at a particular disadvantage. The court rejected the argument that the statutory group disadvantage requirement could be displaced by Convention or Charter rights. Finally, the tribunal was entitled to find that the employer's requirement to sign the agreement was a proportionate means of protecting its legitimate intellectual property interests. The appeal was dismissed.

Appeal dismissed. The court held that the claimant's belief, properly defined, did not cause the refusal to sign the employer's copyright agreement and that there was no evidence of group disadvantage; in any event the employer's requirement was a proportionate means of protecting its intellectual property.

Employment Tribunal (Bristol) hearing 17-18 October 2016 dismissed the discrimination complaint; Employment Appeal Tribunal (Choudhury J) dismissed the appeal (reported [2019] ICR 175; UKEAT/0040/17); permission to appeal to the Court of Appeal was granted and this appeal was dismissed on 17 October 2019.