05 Dec 2019
The Court of Appeal has upheld earlier decisions that an employee’s belief in the right to own the copyright of ‘her own creative workers and output’ was not protected from discrimination by equality law.
Gray v Mulberry Company (Design) Limited
Employees are able to bring tribunal claims if they’re subjected to discrimination because of a ‘philosophical belief’. This is a protected characteristic under the Equality Act 2010.
In the case of Grainger v Nicolson, the EAT provided guidance on what could constitute a ‘philosophical belief’. They outlined that the belief must attain a certain level of cogency, seriousness, cohesion and importance.
In other words, the belief needs to be clear, logical and consistent.
Direct belief discrimination occurs where a person is treated less favourably because of their belief in comparison with others in like-for-like circumstances.
Indirect belief discrimination is a little different. It occurs when a provision, criterion or practice (PCP) puts employees who have this belief at a disadvantage. However, employers may be able to justify this PCP as a ‘proportionate means of achieving a legitimate aim’.
Background to the case
The employee in this case was dismissed after she refused to sign a copyright agreement as a condition of her continued employment.
She later brought claims of direct and indirect discrimination to the employment tribunal (ET).
Her main argument was that this requirement had gone against her belief. This belief was: ‘the statutory human or moral right to own the copyright and moral rights of her own creative works and output’.
What did the employment tribunal say?
The ET dismissed her claim. They explained that the employee had only expressed her belief in relation to her own right to create, produce and write.
In their view, this was fundamentally different to her alleged belief in the right to own the copyright of her work.
As such, this belief did not meet the criteria of attaining a level of cogency and cohesion.
Even if her belief did amount to a protected characteristic, the employee hadn’t suffered direct discrimination. Why? Because any employee who refused to sign the agreement would have been dismissed.
She had also not suffered indirect discrimination. No evidence was shown that the PCP in question—that all employees should sign the agreement—wouldn’t have been acceptable to others who shared her belief.
The ET also agreed that the agreement represented an important means of achieving a legitimate aim. The organisation was protecting its intellectual property.
What did the Employment Appeal Tribunal say?
The employee appealed to the Employment Appeal Tribunal (EAT). She argued that the tribunal had been wrong to find that her belief did not amount to a philosophical belief. She also argued that she had been indirectly discriminated against.
She cited the European Convention on Human Rights in her argument. Under the ECHR there is no need for claimants to establish a group disadvantage in indirect discrimination for philosophical belief claims.
The EAT dismissed her appeal. They explained that, when determining if a belief is a philosophical belief, the assessment should consider the manifestation of that belief.
Importance should be placed on whether doing or not doing an act amounts to a direct expression of this belief. This is as opposed to simply being motivated by it.
When applied to this situation, the EAT held that the employee hadn’t articulated or even expressed her belief to the organisation. She’d simply refused to sign the agreement.
This act could be described as purely commercial and designed to protect her own private interests.
The EAT further held that the Tribunal had not erred in law when applying the group disadvantage requirement.
In their view, it would be incorrect to disregard the group disadvantage requirement in philosophical belief discrimination cases. This would be the case even if the claimant is sole holder of a belief.
What did the Court of Appeal say?
The employee appealed again to the Court of Appeal, who dismissed her appeal.
They didn’t endorse the EAT’s judgement on the appropriate method of determining philosophical belief. However, they didn’t overrule the point made either.
They also held that it wasn’t possible to ignore the requirement of establishing group disadvantage in indirect discrimination either. At least on the grounds of philosophical belief.
However, the Court of Appeal did accept that there could be cases where it was sufficient for a Claimant to show a ‘hypothetical’ group disadvantage. For this to apply, ‘the impact of a PCP on the holder of a particular religious or other belief is so obvious that, in effect, judicial notice can be taken of it’.
For a belief to be protected under the Equality Act, it isn’t sufficient for an individual’s act or omission to be motivated by a purported belief.
There has to a minimum threshold of direct expression of that belief and the act or omission has to be intrinsically linked to that belief.
In this case, the claimant hadn’t raised or expressed their belief to the employer. This makes it unlikely for the employee in question to be deemed to have a protected belief. Equally so if the individual’s act or omission is fundamentally linked to that belief.
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