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Case Law: Mulberry wins discrimination claim

By November 4, 2019Case Review, Top Tip
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Mulberry wins discrimination claim as copyright protection is found not to be a philosophical belief

Gray v Mulberry (EWCA)

The employee was a Marketing Support Assistant for Mulberry, the luxury goods company. In this role she had access to Mulberry’s designs before they were launched. She signed an employment contract but refused to sign an additional copyright agreement, which would assign to Mulberry the rights to the works she produced while working for them. She was concerned that signing the agreement would affect her private work as a writer and film-maker. Draft amendments to the agreement were made but never agreed and in the end, Gray was dismissed for refusing to sign it.

She brought a claim for unfair dismissal for asserting a statutory right (the right to own her own copyright and intellectual property) but when it was established that this right fell outside the scope of the Employment Rights Act 1996, she amended her claim to allege that her dismissal amounted to direct and indirect discrimination because of a philosophical belief (ie the statutory human or moral right to own the copyright and moral rights of her own creative works and output).

Grainger criteria not met

The employment tribunal did not uphold the claim, on the basis that this could not be regarded as philosophical belief. This was because what is referred to as the Grainger criteria, were not met. (These criteria include that the belief was genuinely held, was a belief rather than just an opinion, was on a weighty and substantial aspect of human life and behaviour, was worthy of respect in a democratic society and attains a certain level of cogency, seriousness, cohesion and importance.)

They also found that Mulberry were justified in requiring the agreement to be signed as this was proportionate means of achieving the legitimate aim of protecting their intellectual property. This decision was upheld by the Employment Appeal Tribunal.

This month, the England and Wales Court of Appeal (EWCA) also upheld the decision. They explained that there was not a causal link between the belief in ‘the statutory human or moral right to own the copyright and moral rights of her own creative works and output, except when that creative work or output is produced on behalf of an employer’ and the refusal to sign the document, nor the decision to dismiss her. They held the view that her refusal to sign was because she was concerned that the wording of the agreement either leaned too far in the direction of the employer or failed  to protect her own interests sufficiently.

Proportionate means of achieving legitimate aim

In relation to indirect discrimination, it was also considered that of the 1,500 other employees, many of who would also be creatives, it was likely that many of them would share her view point. However, there was no evidence that any of them had difficulty in signing the agreement and so she was unable to show a comparable group who were at the same ‘disadvantage’ – which is required for an indirect discrimination claim.

They also maintained that the provisions of the original agreement were reasonable, and that Mulberry’s provision, criterion or practice (PCP) of requiring all employees to sign it was indeed a proportionate means of achieving the admittedly legitimate aim of protecting its intellectual property.

HR Learning points

A philosophical belief has to be profound, affecting a person’s way of life or perception of the world. If a new employee explains that they have beliefs which prohibit them from agreeing to parts of a contract, seek to understand both the nature of the beliefs and whether a hypothetical or actual group of others who might share the qualifying beliefs would also be at the same disadvantage as a result of the terms.

It will usually be a good idea to consider whether changes could accommodate the individual without unduly compromising the organisation. If there are reasons why changes cannot be accommodated, then objectively consider whether the approach the business is taking is a proportionate means of achieving a legitimate aim.


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