Gray v Mulberry Company (Design) Ltd

For claims based on religion or belief, the asserted belief must be identified precisely. A dispute over the wording or interpretation of an employment agreement cannot become a philosophical belief where the defined belief has no causal connection to the refusal or dismissal. Indirect discrimination under the Equality Act 2010 requires comparative group disadvantage. It is unnecessary to show that every person sharing the belief is disadvantaged, but evidence must show a shared disadvantage. Hypothetical group disadvantage may suffice where the impact is obvious, subject to a close and direct nexus between the claimant’s action and belief. Article 9 does not remove the statutory group-disadvantage requirement. A reasonable copyright agreement may be proportionate to protecting intellectual property even if an employer unsuccessfully offered a narrower version.

An employee, who was also a writer and film-maker, refused to sign her employer’s copyright agreement. After negotiations and an attempted amendment, she was dismissed. She brought claims alleging discrimination because of her belief in the right to own the copyright and moral rights in her own creative work.

The Employment Tribunal rejected the claims. The Employment Appeal Tribunal dismissed the appeal in a judgment reported at [2019] ICR 175. The claimant appealed on the definition of philosophical belief, group disadvantage in indirect discrimination, and justification.

The appeal was dismissed. The decision of the Employment Tribunal, affirmed by the Employment Appeal Tribunal, was upheld.

1. Definition of the belief. Before considering whether a belief is philosophical under sections 4 and 10(2) of the Equality Act 2010, the belief must be defined precisely. The belief relied on was the right to own copyright and moral rights in personal creative work, subject to the course-of-employment exception. The Court took a different route from the tribunals. The refusal to sign arose from concern that the wording of the copyright agreement gave insufficient protection to the claimant’s own work. There was no causal link between the defined belief and the refusal or dismissal. A dispute about the wording or interpretation of an agreement could not itself constitute a philosophical belief. It was unnecessary to decide whether the Employment Appeal Tribunal was right to focus on manifestation, and the Court did not endorse that approach.
2. Group disadvantage. Section 19(2)(b) of the Equality Act 2010 requires evidence that the provision, criterion or practice put persons sharing the protected belief at a particular disadvantage compared with persons who did not share it. It was not necessary to show that every person sharing the belief would be disadvantaged. However, there had to be evidence of a shared or group disadvantage. The claimant’s individual objection to the wording of a particular clause did not establish that other employees sharing the belief would have suffered the same disadvantage.
3. Article 9 and compatibility. The Court agreed that Article 9 did not require group disadvantage, but held that this did not permit the statutory threshold in section 19(2)(b) to be read down. The approach in Mba v Merton LBC [2014] 1 WLR 1501 permitted justification under section 19(2)(d) to be read compatibly with Article 9. Hypothetical group disadvantage could suffice where the impact was so obvious that judicial notice could be taken, but the claimant’s action still had to be intimately linked to the belief and have a sufficiently close and direct nexus with it. The claimant’s individual manifestation did not satisfy that requirement.
4. Justification. Protecting the respondent’s intellectual property was a legitimate aim. The Employment Tribunal was entitled to find that the original copyright agreement was reasonable and that requiring employees to sign it was a proportionate means of achieving that aim. The respondent’s unsuccessful attempt to accommodate the claimant by offering a narrower agreement did not make insistence on the original agreement disproportionate.

The claimant needed to succeed on all three grounds. She succeeded on none of them.

1. Court of Appeal (Civil Division). The appeal was dismissed and the Employment Tribunal’s dismissal of the claims was upheld.
2. Employment Appeal Tribunal. Choudhury J dismissed the appeal from the Employment Tribunal in a judgment reported at [2019] ICR 175.
3. Employment Tribunal. The tribunal rejected the philosophical-belief, indirect-discrimination and justification claims.