Claire Scott

Ms Gray worked as a market support assistant for Mulberry and had access to some of Mulberry’s designs before they were launched to market. Mulberry asked Ms Gray to sign a copyright agreement, assigning the copyright to Mulberry for all works she made during her employment. This is standard practice where an employer and its employees are creating intellectual property. Understandably Mulberry wanted to protect its new designs before they were launched.

Ms Gray refused to sign the agreement and told HR that this was because it interfered with her own work as a writer and film-maker. She believed that the wording of the agreement might cover her artistic activities away from work.

Mulberry said that it was not interested in gaining copyright over Ms Gray’s personal work and were only interested in copyright over work which related to its business. Mulberry amended the copyright agreement to make this clear. Ms Gray felt that the wording was still too general and open to interpretation and refused to sign it. Mulberry dismissed Ms Gray for her refusal to sign the agreement.

Ms Gray brought an employment tribunal claim against Mulberry. She argued that her dismissal was indirect discrimination under the Equality Act 2010 on the grounds of her philosophical belief which was “the statutory human or moral right to own the copyright and moral rights of her own creative works and output.” Ms Gray had never told Mulberry of this belief or said that this was the reason for her refusal to sign the document. She was unsuccessful in the tribunal and appealed.

In a decision that will come as a relief to employers, the EAT has dismissed the appeal. The EAT acknowledged that each person is at liberty to hold their own beliefs, however irrational or inconsistent they may seem to some.

However, the EAT decided that as Ms Gray had done nothing in relation to her employment that amounted to an expression or manifestation of her belief, she had not met the legal test required to obtain protection under the Equality Act. She had not told Mulberry of her belief or that it was the reason for her refusal to sign the agreement. Instead, she had only indicated that she was concerned about losing control of the copyright to her private work and her own commercial interests.

There needs to be an intimate link between an employee’s belief and the act or omission in question – here, the refusal to sign the agreement. Ms Gray’s refusal could have been for any number of reasons, none of which had anything to do with her philosophical belief.

Interestingly, the EAT also found that Ms Gray would be unsuccessful in an indirect discrimination claim anyway as she was unable to establish any group disadvantage - she was the only person who held the particular belief. Importantly, Mulberry’s actions were also justified as a proportionate means of achieving a legitimate aim – the protection of its intellectual property.

This is a common sense decision for employers trying to protect their intellectual property. However the case is apparently being appealed, so we may receive further guidance on this unusual area in time.

Claire Scott is a professional support lawyer at Burness Paull