In the case of Gray v Mulberry Company (Design) Ltd, the EAT have found that the employee’s belief in protecting ownership of her artistic creations was not a protected belief.
Ms Gray, worked as a market support assistant for the fashion house, Mulberry. Ms Gray was asked to sign an agreement containing a clause which sought to assign all copyright in her work to her employer. Ms Gray refused to sign the agreement on the grounds that its scope could be considered to extend beyond her work for Mulberry and may give Mulberry ownership over a novel and screenplay that Ms Gray was writing outside of work. Attempts were made by Mulberry to amend the agreement to restrict its application to any business or matter arising from Ms Gray’s employment with the company. However, Ms Gray continued to refuse to sign the agreement. As a consequence Ms Gray was eventually dismissed.
Ms Gray lodged a claim for unfair dismissal but later amended her claim to one of direct and indirect discrimination. Ms Gray asserted 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”, under the Equality Act 2010 (‘Equality Act’).
The Employment Tribunal (‘Tribunal’) dismissed the claims and the EAT upheld their decision.
The EAT were satisfied that Ms Gray’s belief lacked sufficient cogency to qualify as a protected belief under the Equality Act and 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 EAT gave consideration to the following factors when deciding whether Ms Gray’s belief qualified as a protected belief under the Equality Act:-
Ms Gray was able to satisfy the EAT of factors one, two, three and five (above) however, it was with regards to the fourth factor that the EAT found that it unlikely that Ms Gray would have professed to having held a philosophical belief which qualified for protection under the Act. Both the Tribunal and EAT decisions highlighted the fact that Ms Gray took no action to make her belief known to Mulberry and that, on the facts, her refusal to sign the agreement was not driven by her philosophical beliefs but more so her concern for protecting her own intellectual property rights. This is where a distinction was drawn by the Tribunal and EAT in comparison with other philosophical belief cases which were afforded protection under the Equality Act.
It was also determined that even if Ms Gray’s belief was protected under the Equality Act her claims would still fail. The claim of direct discrimination was rejected on the basis that the dismissal was due to Ms Gray’s failure to sign the agreement and not because of her philosophical beliefs, of which her employer had no understanding and knowledge.
The claim for indirect discrimination also failed because Ms Gray was the only person known to hold such a belief and so there could be no “disadvantaged group” which is an essential element in this type of claim.
Note: The general rule in relation to copyright and indeed any IP right (whether documented in writing or not), is that during the course of employment anything created by the employee belongs to the employer. There are one or two slight exceptions but they are rare. Where things get more complicated is where the IP is created by an independent contractor or third party working on such terms for a company. In those instances, the general rule is that unless expressly assigned in writing, the IP will remain with the independent contractor/third party and not the employer. This misunderstanding is often the cause of many IP disputes between companies and third parties. Our IP team can advise on this issue as well as drafting IP assignments and other relevant documents to ensure that you actually own and retain your IP that you have paid for.
Hannah Pryce comments:
“Whilst the outcome is perhaps not surprising, this is a useful decision as the EAT provided clear guidance on the factors to be taken into consideration when deciding whether a particular belief can be afforded protection under the Equality Act. There is also a clear message in the case which recognises the importance for employers to use appropriate legal safeguards to protect against infringements of their intellectual property. Our employment team and intellectual property team work together to offer specialist guidance in this complex area.”
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