The Employment Appeal Tribunal has held that an employee’s belief in the right to own the copyright and moral rights of her own creative works and output was not a philosophical belief under the Equality Act 2010.
The employee, in this case, was asked to sign an agreement under which she would assign the copyright and other proprietary rights to her employer in respect of all works and designs originated, conceived, written or made by her in the course of her employment.
She refused to sign the agreement because she said that it interfered with her own work as a writer and film-maker. She believed that the intellectual property obligations in the agreement could extend to her artistic activities outside work.
Although the employer agreed to amend the intellectual property agreement to make it clear that only work which related to its business would be covered, she still refused to sign the agreement. She considered that the clarifying words which had been added to the agreement were “general and open to interpretation”. After several months, following a series of meetings with HR, at which she made it clear that she would not sign the agreement, she was dismissed for refusing to comply with the conditions of her employment. She had not stated at any time during her employment that she had a philosophical belief in protecting the ownership of her artistic creations.
She then brought a tribunal claim for direct and indirect discrimination on grounds of belief. She articulated her belief as “the statutory human or moral right to own the copyright and moral rights of her own creative works and output.”
The tribunal said that her belief was genuinely held, was a belief rather than an opinion, and concerned a weighty and substantial aspect of human life and behaviour. It also found the asserted belief to be worthy of respect in a democratic society. However, it found that the asserted belief was not sufficiently cohesive to form any cogent philosophical belief system. Her expression of her belief, it said, concentrated on an individual’s right to create, produce and write, and the benefit she derived from those activities, which was something entirely different.
The tribunal rejected the claim on this basis. It went on to consider the discrimination claims in any event. It rejected the claim of direct discrimination on the basis that the dismissal was due to her failure to sign the agreement and not because of her philosophical beliefs, of which the employer had no knowledge. As for indirect discrimination, the tribunal found that the provision, criterion or practice (PCP) in question, namely the requirement to sign the agreement or be dismissed, was not shown to have put other persons sharing her belief at a particular disadvantage. It also found that, to the extent that there had been any indirect discrimination, the defence of justification applied.
Dismissing a subsequent appeal, the Employment Appeal Tribunal said that the focus had to be on manifestation of the belief by reference to her refusal to sign the intellectual property agreement. While that refusal might have been dictated by her belief, it did not amount to a manifestation of it. She had not at any stage made her belief known to the employer. Her only stated reason for refusing to sign was that the employer would obtain rights over her creative output and a commercial concern that it might make it difficult to sell her work. There was no suggestion at the time that her refusal was motivated by a philosophical belief. Her actions had done little more than indicate that she was concerned about losing control of the copyright to her private creative output. Her objections could be described as purely commercial and designed to protect her own private interests. That did not amount to an actual expression of her belief.
The Employment Appeal Tribunal said that it is not necessary for a claimant to manifest their belief outwardly, through proselytising or campaigning, in order to attract the protection of the Equality Act 2010. A belief that is manifested only in private may be just as cogent, serious and coherent as a belief that manifests itself more publicly. However, it rejected a submission that the employment judge had appeared to require this kind of public display.
In relation to the indirect discrimination claim it said that the tribunal had correctly concluded that, due to a lack of evidence, group disadvantage was not made out. The employer could not possibly have anticipated that the PCP of requiring employees to sign the intellectual property agreement could have adversely affected a group of which it had no knowledge.
It also said that the requirement to sign an intellectual property agreement was a proportionate means of achieving the legitimate aim of protecting the employer’s intellectual property. The agreement in its amended form went no further than was necessary to protect the employer’s legitimate interests and it had been proportionate to make signing the agreement a condition of the employee’s continued employment.
Case reference: Gray v Mulberry Company (Design) Limited