If you want to push the concept of protection for philosophical belief under the Equality Act 2010 way beyond its sensible limit, here is just the case for you.
In Gray-v-Mulberry Company (Design) Limited earlier this month the Court of Appeal delivered a comprehensive hand-bagging to the claim of a new Mulberry employee that she should not have to sign a standard IP clause as an issue of her philosophical belief and therefore that her dismissal for not doing so was discriminatory.
Gray’s claimed belief was in the sanctity of her rights to own and profit from her own creative output. Some five years before joining Mulberry she had written a screenplay of which she was particularly proud and possessive. Without any very obvious reason she read the proffered IP clause as allowing Mulberry to get hold of it. Mulberry amended the clause to make it clear beyond argument that it was not interested in the screenplay but still Gray would not sign it. Mulberry lost patience and dismissed her.
Without the service necessary to claim unfair dismissal, Gray had to look elsewhere for recourse and alighted eventually on a claimed philosophical belief – “the right to own the copyright and moral rights of her own creative works and output, except when produced on behalf of an employer”. As beliefs went, it lacked a degree of colour, which Gray kindly supplied in her evidence to a no-doubt mystified Employment Tribunal: “there is in this case an issue of deeply held belief, of spiritual practice, of identity, of human rights, and of the attempted colonisation of those private areas of a person’s life and mind by a commercial enterprise with no actual interest in that individual’s work, or devotions or poems or hymns or life”.
Anyway. Back on earth the Court of Appeal reviewed the Tribunal’s consideration of whether all of this was enough to satisfy the principles and conditions of a protectable philosophical belief in the EHRC guidance. In particular, did a belief in the right to own your own works unless made for the benefit of your employer possess the cogency, seriousness and importance necessary? The ET and EAT had found that it did not, largely on the basis that not one of the other 1,500 Mulberry employees (many no doubt also Creatives) had felt it necessary to take the point on the IP clause, and also because Gray had not explained her views as such when declining to sign it. The Court was not convinced that something could only be a protected belief if you made it known as such, but it was struck by the complete absence of any evidence that anyone else who held similar views would also have refused to sign the clause. Gray was therefore unable to show that the requirement to sign put people holding that belief at any sort of disadvantage, so her indirect discrimination claim failed.
There were three other grounds relied on which you might tentatively think should have stopped this one getting beyond the ET. First, Mulberry had an obvious commercial interest in owning and protecting the IP generated for it by its employees and a clause for that purpose which was normal and unanimously acceptable to all its other staff. Its dismissal of Gray was therefore justifiable. Second, it was clear that in view of the assurances Mulberry had given around its overwhelming lack of interest in Gray’s screenplay and the amendment to the clause it had been willing to make to record this, her refusal to sign was simply unreasonable. Last, the Court of Appeal did not agree that her refusal to sign (and hence her dismissal) was because of her belief but merely because she wanted an even greater degree of security around her screenplay. The belief and the dismissal were therefore unconnected.
Lessons for Employers:
- It will generally be a brave employee who takes philosophical belief points around contract terms, but that does not mean that it cannot be done in the right circumstances. If your new employee has beliefs prohibiting his working on Sundays or with pork or alcohol or with certain financial products, for example, those may well form valid grounds for objection.
- If those beliefs are protected by the Equality Act and do lead directly to his refusal to sign up, it will be incumbent on the employer to consider whether changes to drafting or job remit could accommodate him.
- However, if having done what you can as employer, there remains a gap between what the employee is willing to agree to and what you reasonably require, there is nothing which prevents you from bringing that clearly doomed relationship to an end. That is the case whether the contract problem arises before or after he starts. The key is to be seen to try in good faith to square the circle, but if you cannot, then you cannot.