For 15 years now it has been unlawful to discriminate against employees for reasons relating to their religious or other philosophical beliefs. The precise ambit of this protection has been debated and refined through the case law. In particular, we have seen a number of decisions which have wrestled with the question of which beliefs are capable of protection and which are not. The recent case of Gray v Mulberry has taken this process a step further.
Ms Gray was employed by the fashion brand, Mulberry. Her role gave her access to the company’s product designs. As a result, Mulberry wanted her to sign their standard employment contract, which included provisions aimed at protecting their ownership of any designs produced by their employees in the course of their employment. So far, so good. However, the problem was that Ms Gray was a budding writer and film-maker. As a result, she was concerned that by signing Mulberry’s contract, she might inadvertently give away the copyright in the various artistic endeavours she pursued outside of work.
Discussions took place, as a result of which Mulberry changed the wording of its contract to make it clearer that it was only interested in protecting its rights relating to products designed in the course of its business. However, Ms Gray was still not satisfied. So when she continued to refuse to sign the contract, Mulberry decided to dismiss her.
Ms Gray filed claims for, amongst other things, indirect discrimination on the grounds of her beliefs; more specifically, she relied on her belief in the right to own the copyright in one’s own creative works and output. She argued that whilst the requirement to sign the employment contract applied to all, it placed her (and others who hold her beliefs) at a particular disadvantage when compared with the population at large.
Ms Gray’s claim failed before the Employment Tribunal, so she appealed. However Mr Justice Choudhury, sitting in the Employment Appeal Tribunal, upheld the ET’s decision. More specifically, he considered whether the ET had been right to conclude that her ‘belief’ lacked sufficient cogency to enjoy protection. He found that it did. He also considered whether it was possible for a person to pursue an indirect discrimination claim in relation to a belief that (seemingly) only the claimant held. Mr Choudhury confirmed that such a claim was bound to fail. For it to succeed, Ms Gray was obliged to show that there was a group of people (of which she was one) who suffered (or would suffer) the same disadvantage. Without the ability to do this, her claim had to be rejected.
We have seen some interesting cases over the years about the sorts of beliefs which are capable of protection (e.g. man-made climate change, the ability of mediums to contact the dead to name just two). However, the more ‘niche’ the belief, the harder it will be for employees to succeed in a claim. If the claimant is the only adherent to a particular belief, it would appear that they enjoy no protection at all. That said, Ms Gray has been given permission to take her case to the Court of Appeal. So this may not be the last we have heard of this particular matter. Watch this space for news of further developments!