The Court of Appeal has been getting philosophical

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29 November, 2019

In the recent case of Gray v Mulberry Company (Design) Ltd, the Court of Appeal addressed the issue of 'philosophical belief' pursuant to s.10 of the Equality Act 2010.

An employee of Mulberry had refused to sign an agreement confirming that any copyright over work created in her role would vest with her employer, and was dismissed as a result. She'd refused to sign the agreement as she believed it interfered with her own work as a writer and film-maker, despite the fact that the employer amended the agreement to clarify that it did not relate to any personal work.

She brought a claim for indirect discrimination on the ground of philosophical belief pursuant to s.10 and s.19 of the Equality Act, replying on her belief in the right of individuals to profit from and receive credit for their own work.

The Employment Tribunal rejected her claim on the basis that her belief was not sufficiently cohesive to constitute a philosophical belief under s.10. Additionally, it found that the claim for indirect discrimination would have failed in any event as s.19 provides that it can only be established where the employer applies a provision, criterion or practice that puts a person who shares a given belief at a particular disadvantage when compared with people who do not share the belief. It could not be said that she had suffered such a disadvantage.

Her appeal to the Employment Appeal Tribunal was unsuccessful and she appealed to the Court of Appeal. The Court held that it was irrelevant whether her belief constituted a philosophical belief pursuant to s.10 as she had not been put at any disadvantage. There was no causal link between her belief and her refusal to sign the agreement or the decision to dismiss her. She had refused to sign the agreement as she believed the wording of the clause leaned too far in Mulberry's favour and failed to sufficiently protect her own interests. The Court explained that this dispute about the particular wording of a clause could not amount to a s.10 belief.

In reference to the need to establish that others of a similar belief would be at the same disadvantage to satisfy s.19, the Court held that there was no evidence that other individuals who shared her belief would have had any difficulty in relation to the copyright agreement. Her issue was with the wording of the agreement and not as a result of her belief. It was the result of her wish to protect her own creative works. As such, 'a group disadvantage' could not be established. In its judgment the Court emphasised that in every case the disadvantage must result from action on the part of the individual that is intimately linked to the belief.

The Employment Tribunal has also recently considered whether vegetarianism amounts to a philosophical belief under s.10 in Conisbee v. Crossley Farms Ltd. Consibee brought a claim for discrimination on the grounds of religion and belief. The Tribunal found that although it was clear that the claimant had a genuine belief in vegetarianism and animal welfare, vegetarianism was not capable of amounting to a S.10 philosophical belief. The Tribunal clarified that it was not sufficient to merely have an opinion based on logic. The belief under consideration was required to have a similar status or cogency to religious beliefs in order to be afforded protection.

The claim to philosophical belief appears to be in vogue. There is currently a case listed to be heard to address the issue of whether ethical veganism can amount to a philosophical belief. So although the Courts have to date been reluctant to accept any potential for such issues to equate to rights, it is clear that individuals are trying to push the boundaries of the meaning of the provision. At the current time, the Courts are adhering to a rigid and restricted interpretation which arguably best reflects the intention behind the drafting of the provision, which reduces the risk of employers being caught unaware. However, it is advisable to take independent legal advice if you are in any doubt as to the potential for employee's beliefs to crystalise into rights.

For more information contact Rosalind Leahy in our Education department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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