UK: Indirect discrimination on the grounds of religion or belief
Employees are protected against discrimination because they have a religious faith or a philosophical belief, as well as because they don’t. A philosophical belief must meet certain conditions in order to be protected including being a weighty and substantial aspect of human life, worthy of respect in a democratic society and not conflicting with the fundamental rights of others.
Ms Gray was asked to sign a standard contract clause which specified that her employer, Mulberry, would own the rights to any work she completed during her employment. She refused on the basis that this would impact on any work she did in her own time as a writer and filmmaker. Mulberry agreed to amend the clause so that only work carried out in relation to its business would be covered, but Ms Gray still refused to sign and was subsequently dismissed.
Ms Gray brought a claim for direct and indirect discrimination on grounds of belief, i.e. her belief in the sanctity of copyright and that people should own and profit from their own work. However, the Court of Appeal decided that it was irrelevant whether or not her belief in the sanctity of copyright amounted to a protected belief under the Equality Act. This was because it was not her belief that put her at a disadvantage, i.e. that lead to her dismissal – it was her refusal to sign the copyright agreement on the basis that it did not protect her interests.
In relation to the indirect discrimination claim, Ms Gray had failed to show group disadvantage – although her belief was widely held, she had failed to establish that any of the employer’s other employees had suffered a disadvantage because they shared her belief.
Practical point
Most religion or belief claims are brought as indirect discrimination claims and, except in the most obvious cases, the employee will need to show group disadvantage. The employee must show that the employer’s provision, criterion or practice puts others sharing that belief at a disadvantage, compared to those who do not share that belief.
The Court did not need to consider whether the belief would amount to a philosophical belief in this case. In another recent case, a tribunal found that vegetarianism was not a philosophical belief but hinted that veganism may well be. It will be interesting to see whether a tribunal, which will be considering early next year whether ethical veganism is capable of being protected as a philosophical belief, agrees.
Gray v Mulberry Company (Design) Ltd
