Legal Corner: Belief in the right to own the copyright of your own creative output not a ‘philosophical belief’

28th Sep 2018

Whilst most of us are aware that the anti-discrimination laws in this country include protection to those who have and profess a religious belief, it is less well known that that protection extends to philosophical beliefs as well. The most common examples of philosophical beliefs are atheism and humanism. However, people hold all sorts of philosophical beliefs, and the question of what kinds of beliefs are worthy of protection under the law is not always easy to answer.

The matter was recently discussed by the Employment Appeal Tribunal in Gray v Mulberry Company (Design) Ltd UKEAT/0040/17.

Ms Gray was a writer and film-maker. She was successful in her application for a job as a Market Support Assistant at Mulberry, best known for its luxury leather handbags. In her role, Ms Gray had access to some of Mulberry’s designs ahead of their launch.

Understandably, Mulberry wished to protect its intellectual property rights, and therefore required all its employees to sign an agreement which, amongst other things, assigned to Mulberry the copyright in all ‘works and designs originated, conceived, written or made by you during the period of your service with Mulberry’.

Ms Gray refused to sign this agreement; she told her employer that she felt it was important to own the copyright to her own creative output, and she believed that the agreement extended to her artistic activities away from work. Mulberry made clear to Ms Gray that it had no interest in obtaining the copyright to her own personal work; it merely sought to protect its own business.

The agreement was therefore amended to make clear that it related to ‘any business of Mulberry Company or any matter arising from your employment with Mulberry’. However Ms Gray considered that the amendment was open to interpretation, and still refused to sign the agreement. Discussions continued for some months but the matter could not be resolved, and Ms Gray was ultimately dismissed for failing to sign the agreement.

Ms Gray brought proceedings against Mulberry in the Employment Tribunal. She argued that she held a philosophical belief in “the statutory human or moral right to own the copyright and moral rights of her own creative works and output” and that she had been discriminated against, by her dismissal, for holding such a belief.

She argued that she had become passionate about these matters having studied intellectual property law as part of her Master’s degree, and had even written a screenplay which explored issues of ownership of intellectual property. However, the Tribunal noted that at no stage had Ms Gray professed to Mulberry that she held such a belief, or that she considered that what she was being asked to do contravened such a belief. They did not accept her argument that by simply failing to sign the agreement, she had given such an impression.

Guidance has been given in previous cases as to the requirements of a philosophical belief. The tribunal accepted that Ms Gray’s assertions were a belief that was genuinely held; that it concerned a weighty and substantial aspect of human life and behaviour, and was worthy of respect in a democratic society.

The area where Ms Gray failed, however, was in showing that her belief had attained a certain level of cogency, seriousness, cohesion and importance. The tribunal did not accept that she held her belief as any sort of philosophical touchstone to her life. Her own view of her belief appeared to focus on an individual’s right to create artistic work, and the benefit that she obtained from these activities, which was insufficient.

Ms Gray appealed to the Employment Appeal Tribunal (EAT) but her appeal failed.

The EAT agreed with the tribunal’s conclusions above. They did not accept that Ms Gray had manifested any such belief in not signing the contract. She had not made any reference to it in her discussions and correspondence with Mulberry, and the reasons she had provided did not suggest that her refusal was based on such a belief. Instead, she appeared most concerned about the risk that Mulberry would obtain rights over her private creative output which might make it more difficult for her to sell her work to others.

This supported the view that her belief lacked the level of cogency and seriousness required.

Whilst on this occasion Ms Gray’s belief did not constitute a philosophical belief worthy of protection in law, it is important to ensure that where an employee raises a belief which falls outside well-understood parameters, it is not simply discarded or ignored.

A genuinely held and manifested belief, which meets all the criteria above, may well be deemed worthy of protection.

Safia Tharoo, Barrister, 40 Bedford Row, London

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