Hello and welcome back to your weekly case law update. Last week was our monthly employment law update which had features on the Parliament pairing scandal, caste discrimination, the Government’s sexual harassment report and PAYE for gig workers. We also had our warm weather guidance, publishing this only caused a brief forty-eight hour storm but thankfully the sunshine has resumed!
This week we have three cases for you. The first is an EAT case about religion and belief discrimination, the second is an ET case about gig workers and our final case is a procedural Court of Appeal case about time limits.
Our first case is about religion and belief discrimination. Defined in S10 of the Equality Act 2010, a person can be discriminated against because of their religion, beliefs or a lack of religion/beliefs.
Like any other characteristic protected from discrimination, the discrimination can be direct (Section 13 Equality Act 2010 – not employing someone because of a protected characteristic), indirect (Section 19 – a policy that inadvertently discriminates against employees with a protected characteristic), harassment (Section 26 – employees feeling humiliated, offended or degraded because of their protected characteristic) and victimisation (Section 27 where an employee is treated badly after making a complaint of discrimination).
A religion is defined as a clear structure and belief system. This includes sects of larger religions such as Baptist Christians or Rohingya Muslims but also smaller religions such as Paganism, Scientology or Rastafarianism.
A belief must be genuinely held and more than an opinion. It must be more than an opinion or viewpoint, it must be cogent, serious and apply to an important aspect of human life or behaviour. This is not restricted to religious beliefs but philosophical ones too. Humanism, atheism, Darwinism and environmentalism would all qualify.
Previous case law has found left-wing views and a belief that public money was being wasted qualified as protected beliefs. However, the belief must also be worthy of respect in democratic society, meaning an extreme belief, such as one race being superior to another, would not qualify.
Therefore, the question this week is:
Can a belief in the right to own the copyright and moral rights of your own creative works be a protected philosophical belief?
Ms Gray, the Claimant, worked as a Market Support Assistant for Mulberry, the Respondent, a designer and seller of luxury handbags. Outside of work, the Claimant was a writer and film maker. Part of the Claimant’s role was to create promotional materials for the Respondent’s products before they were released for sale.
To protect their intellectual property, the Respondent required all employees to sign a copyright agreement as a condition of continuing employment. The Claimant, worrying the agreement would extend to her writing and film making, refused to sign the agreement because she believed she had a right own the copyright to all her creative output. Despite this she did not assert it was a philosophical belief under S10.
The Respondent amended the Claimant’s copyright agreement and stated that the agreement only covered any copyright in relation to her employment with the Respondent. The Claimant refused to sign and was eventually dismissed with notice.
The Claimant initiated ET proceedings. She argued she had been directly and indirectly discriminated against because of her belief in the right to own the copyright and moral rights of her own creative works. She claimed the discrimination was direct, because she had been dismissed for her beliefs, and indirect, because the Respondent stipulated signing the copyright agreement as a condition of employment, which someone with such beliefs would not be able to do.
The ET first examined whether the belief was a protected belief. It examined the criteria of a protected belief:
- Was the belief genuinely held? Yes, the Claimant did genuinely believe in right to her creative output.
- Was the belief more than an opinion? Yes, the Claimant’s belief could not be altered by changes of fact.
- Did the belief apply to areas of human life? Yes, the Respondent introduced the copyright agreement because copyright has a whole discipline of law dedicated to it.
- Was the belief worthy of respect in democratic society? Yes, it did not conflict with the rights of others
- Was the belief cogent or serious? No, the Claimant had not altered her life because of this belief by campaigning for better protection or stricter laws. Many people, the Claimant included, hold a belief that copyright theft is a bad thing but would not consider that belief is a philosophical cornerstone of their life.
Therefore, the ET held the Claimant did not hold a protected philosophical belief. In any event, the ET examined whether the Claimant’s claim would have succeeded if the belief was protected.
The ET held the direct claim would have failed because the Claimant was dismissed for failing to sign the copyright agreement, an employee without such a belief would also have been dismissed so dismissal was not linked to her belief in the sanctity of copyright.
The indirect claim would also have failed. The agreement did not result in other people who believed in the importance of copyright being dismissed and the agreement was a proportionate means of achieving a legitimate aim: protecting copyright!
The Claimant appealed and the EAT rejected the appeal. The ET had been right to find that the Claimant’s belief was not a protected belief. Likewise, it was correct to dismiss both the direct and indirect discrimination claims. Furthermore, the Claimant’s indirect discrimination claim could not succeed because the Claimant was the only person to hold that belief and therefore there was no group disadvantaged by the Respondent stipulating the agreement is signed.
The takeaway point:
No, in this case a belief in the right to copyright over creative output is not a protected belief because the belief is not cogent or serious enough. If the Claimant had altered her life in some way (such as a vegetarian giving up meat) or could evidence this view was a foundation to her life (such as an atheist abstaining from religious activities and not believing in any form superior being) then the belief could be protected by the Equality Act.
This case has been given permission to appeal to the Court of Appeal but even if the CoA holds that the belief in copyright is protected the Claimant would still struggle to prove they were discriminated against in this case.