Opinion

When does a belief become an employment right?

18th September 2018

The Equality Act 2010 (EA 2010) sets out a number of protected characteristics and in Gray v Mulberry, the protected characteristic of “religion or belief” was brought into question and tested.

Belief means any religious or philosophical belief and also a lack of belief. Previous case law set out the legal test for a belief which requires that the belief:

  1. Be genuinely held.
  2. Be a belief, not an opinion or viewpoint based on the present state of information available.
  3. Be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. Attain a certain level of cogency, seriousness, cohesion and importance.
  5. Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In Gray, the employee (Ms Gray) joined Mulberry in 2015 in the capacity of a market support assistant. As part of her role, she had access to designs of products before they were launched. Mulberry provided the employee with a contract of employment which contained detailed intellectual property provisions which in essence provided the company with a strong level of protection (any and all designs whether made by the employee or otherwise remained the property of the company).

The employee refused to sign the contract on the basis of the clause as it would interfere with her own private work as a writer and filmmaker, which was separate from her work with Mulberry. The company amended the agreement to make it clear that it related to work/designs concerning Mulberry only but the employee again refused to sign. She was subsequently dismissed for refusing to sign the agreement.

The employee issued a claim in the Employment Tribunal for direct and indirect discrimination on the grounds of religion or belief. The employee described her belief as “The statutory, human or moral right to own the copyright and moral rights of her own creative works and output”. When considering the point, the Tribunal applied the test set out above and found that points 1, 2, 3 and 5 were established. However, the belief was not found to be cohesive enough to form any cogent philosophical belief system. The employee’s claims were dismissed in their entirety at Tribunal and she appealed.

The Employment Appeal Tribunal (EAT) dismissed the appeal and stated that “having a belief relating to an important aspect of human life or behaviour is not enough in itself for it to have a similar status or cogency to a religious belief”. The claims of direct and indirect discrimination therefore failed.

Employer Considerations

Whilst the decision could be considered useful to employers, it should be seen as an example of how fine the line can be between a belief that is protected under the EA 2010 and one that is not.

If the employee had made her belief clear when she refused to sign, this may have strengthened her position. Employers should always approach the philosophical beliefs of employees with an open mind and with a degree of caution even if the belief may seem (on the face of it) to seem unusual or of general concern. For example, a belief in climate change was previously held as being capable of constituting a belief.

The case is also a reminder that certain non-religious beliefs can qualify for protection from discrimination provided they meet the criteria set out above.

 

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