Tue 12 Nov 2019

Handbags at 20 paces….

An employee of Mulberry has taken her philosophical belief discrimination claim to the Court of Appeal

One area of employment law that has continued to progress via court and tribunal decisions in 2019 is that of discrimination in the workplace because of religion and belief.  This has now been found to encompass a wide array of philosophical beliefs ranging from the fairly rational belief in environmentalism and climate change to the (with respect) possibly somewhat surprising belief that mediums can communicate with the dead.  The most recent decision comes in the form of Gray v Mulberry Company (Design) Ltd.

The philosophical belief asserted in this case was the claimant's "statutory human or moral right to own the copyright and moral rights of her own creative works and output".  The claimant was employed as a marketing assistant for Mulberry who are well known for their luxury handbags.  Not surprisingly she (along with all other Mulberry employees) was asked to sign a Confidentiality and Copyright Form ("the Form").  The problem for the claimant was she had a side job (working for herself) as a writer and film maker and she believed the Form - which covered works and designs produced by her during the period of her service with the company - could extend to these activities.  Despite the company amending the Form to cover only work which related to their business the claimant still refused to sign it and she was dismissed with notice.

The claimant subsequently lodged a claim for unfair dismissal on the grounds of asserting a statutory right (namely the right to own her own copyright and intellectual property) which was later amended to be a claim of direct and indirect discrimination on the grounds of belief.  The employment tribunal  dismissed her claim on the basis the belief was not sufficiently cohesive to form any cogent philosophical belief system (one of the criteria set out in Grainger plc & others v Nicholson that must be met if a belief is to be protected under the Equality Act 2010); and on the basis she had not established the provision, criterion or practice  ("PCP") applied by Mulberry (that all employees must sign the Form) put other persons sharing her belief at a particularly disadvantage - something that is required for an indirect discrimination claim.  The tribunal also held that in any event the defence of justification applied in that the requirement to sign the Form was a proportionate means of achieving a legitimate aim.   The claimant's appeal to the EAT was unsuccessful and the matter then fell to be considered by the Court of Appeal.

Although it approached the question of whether a belief in the right to own the copyright over creative works was a philosophical belief under the Equality Act, the Court of Appeal reached the same conclusion as the tribunal and EAT, and dismissed the appeal.  The Court held that neither the claimant's refusal to sign the Form nor Mulberry's decision to dismiss her was caused by the asserted belief.  Rather it was her concern that the wording proposed and subsequently amended by Mulberry in the Form leaned too far towards Mulberry's interests and was insufficient to protect her own.  A dispute about contractual drafting or interpretation cannot amount to a philosophical belief.

This judgement does not take the issue of what amounts to a philosophical belief forward. The Court of Appeal did though provide some guidance on how these cases will be dealt with.  In addition to establishing they have a belief that is protected under the Equality Act, a claimant will need to show the detriment they suffer was caused by the action they took because of their belief and a claimant must be able to show that a PCP puts or would put others sharing their belief at a disadvantage. 


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