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Testing the limits of religious and philosophical belief discrimination

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The Equality Act 2010 (the 2010 Act) prohibits direct discrimination, indirect discrimination and harassment in the workplace in respect of religion, religious belief and philosophical belief.

In the recent case of Gray v. Mulberry, Ms Gray refused to sign a standard contract clause assigning copyright in her work to her employer (fearing that it would give them ownership over a novel and screenplay she was writing), despite the fact that the contract was amended to exclude them. She was subsequently dismissed for failing to sign the contract.

Ms Gray claimed that her belief in “the statutory human or moral right to own the copyright and moral rights of her own creative works and output” amounted to a philosophical belief and was therefore a protected characteristic. The EAT held that the belief lacked the cogency required to amount to a philosophical belief for the purposes of the 2010 Act and in any event there was no intimate link between this belief and her refusal to sign the contract. Ms Gray had not referred to her philosophical beliefs at the time of her refusal to sign the contract.

Furthermore, the EAT held that even if it was wrong and that Ms Gray’s belief could amount to a philosophical belief for the purposes of the 2010 Act, there could be no indirect discrimination as Ms Gray (on the evidence exhibited) was the only known person to hold that specific belief. Accordingly, there could be no group disadvantage which would have been required for such a finding. 

Notwithstanding the decision in this case, the cases of Grainger plc v. Nicholson and Hussain v. Bhullar t/a BB Supersave highlight that employers should not be dismissive of “distinctive” philosophical beliefs. The criteria set out in Grainger and the Equality and Human Rights Commission’s Code of Practice on Employment set out the requirements before a philosophical belief will be protected under the 2010 Act:

1.         The belief must be genuinely held;

2.         It must be a belief as opposed to an opinion or viewpoint;

3.         The belief must concern a weighty and substantial aspect of human life and behaviour;

4.         The belief must attain a certain level of cogency, seriousness, cohesion and importance; and

5.         The belief must be worthy of respect in a democratic society.

In the case of Grainger, the employee had a strongly held philosophical belief about climate change and the environment. The tribunal found that his belief gave rise to a “moral order” similar to most religions, and was a “philosophical belief”.

In Hussain, the employee stated that it was his religious duty to remain at home with his mother in the period following the death of his grandmother. The tribunal found that this was part of Muslim culture and tradition and that the employee did feel that it was his religious duty even though the Koran was silent on this matter. This was sufficient to make his attendance at home part of his religion or a religious belief.

Permission has been granted for Ms Gray to appeal to the Court of Appeal so this might not be the last we have heard about this particular case and the wider issue of unique philosophical beliefs.