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Philosophical belief case on right to copyright fails

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Is an argument about the interpretation of a contract protected as a philosophical belief?

No, said the Court of Appeal in Gray v. Mulberry Co (Design) Ltd. We have blogged about earlier stages of this case previously (see here and here) and it has just been heard by the Court of Appeal.

Ms Gray was an employee of the fashion company, Mulberry Co (Design) Ltd. Aiming to protect its intellectual property (IP) interests, the company requested that Ms Gray sign an IP agreement to ensure that the work she did belonged to them. She refused to sign, arguing that it would extend to her artistic activities as a writer/filmmaker away from work. Mulberry restricted the agreement to her work for them, but she continued to refuse and was subsequently dismissed. Mulberry believed that, by refusing to sign the agreement, Ms Gray may seek to copy some of its products or designs.

Ms Gray brought a claim to the ET for direct and indirect discrimination, arguing that she had been discriminated against on the basis of philosophical belief (i.e. for asserting her moral right to copyright). As a reminder, philosophical belief is one of the nine protected characteristics under the Equality Act 2010. The Act does not provide a specific definition of “philosophical belief”, but a useful guidance in this regard was provided in the case of Grainger plc v. Nicholson and Hussain v. Bhullar t/a BB Supersave, and in the Equality and Human Rights Commission’s Code of Practice on Employment, which we explained here. One of the main criteria considered by the tribunals is that it must not be an opinion or viewpoint based on the present state of information available.

The ET and, on appeal, the EAT found against Ms Gray.

Ms Gray’s appeal again failed. The Court of Appeal agreed with the ET that a debate or dispute about the wording or interpretation of an agreement could not be a philosophical belief and there was no causal link between the belief and the dismissal. The Court also considered Ms Gray’s arguments in relation to indirect discrimination (she did not pursue her direct discrimination claim at the appeal). Indirect discrimination is concerned with an employer’s decisions or policies (commonly known as PCP – a provision, criterion or practice) which, although not intended to treat anyone less favourably, in practice have the effect of disadvantaging a group of people with a particular protected characteristic. The Court held that the company’s PCP (i.e. requiring employees to sign confidentiality IP agreements) did not, or would not, put others who shared her belief at a particular disadvantage when compared with people who did not share that belief. The Court stated that Ms Gray’s manifestation of her belief was “so individual that she is the only person in a group holding the same belief who is put at a disadvantage”. It also concluded that the company’s PCP was a proportionate means of achieving the admittedly legitimate aim of protecting its intellectual property.

The definition of “philosophical belief” continues to be considered by tribunals and courts – see our recent blog on vegetarianism and ethical veganism. It is not always easy to determine how it will be applied in any particular circumstances.