Belief in the right to own copyright not capable of protection


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The Employment Appeal Tribunal (EAT) has held in Gray v Mulberry Company (Design) that an employer cannot discriminate on grounds of philosophical belief where the employee is the only person to hold such a belief. Ms Gray worked for Mulberry as a Marketing Support Assistant.

She signed an employment contract but refused to sign a supplemental copyright agreement (the Agreement) which assigned copyright in her work to her employer, as she feared that it would give her employer ownership over her private work as a writer and film-maker. This continued to be her position and, eventually, she was dismissed.

She claimed that she had been discriminated against because of a philosophical belief, i.e. the statutory human or moral right to own the copyright and moral rights of her own creative works and output. The tribunal dismissed her claim, and the EAT agreed holding that it had been entitled to conclude that the belief lacked sufficient cogency to qualify under the Equality Act 2010. Ms Gray had not articulated her belief when refusing to sign the Agreement and so there had been no actual expression of her belief. The tribunal had therefore been entitled to decide that Ms Gray's belief was not a philosophical touchstone to her life and was "not sufficiently cohesive to form any cogent philosophical belief system".

The EAT then went onto hold that there could be no indirect discrimination as Ms Gray was the only person known to hold such a belief, and therefore there was no disadvantaged group as she was not part of any group. As the EAT pointed out, the respondent could not possibly have anticipated that the provision, criterion or practice of requiring employees to sign the Agreement (which the tribunal had found to be not obviously unreasonable) could have adversely affected a group of which it had no knowledge.

Take note: This decision emphasises that in order to be protected a belief must attain a certain level of cogency, seriousness, cohesion and importance. If an act (in this case not signing the Agreement) does not amount to a direct expression of the belief concerned and is not "intimately linked to it" then it will not be protected.

This article is taken from HR Law - August 2018.

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