Indirect discrimination and philosophical belief
The concept of philosophical belief is protected by the Equality Act 2010 – and many top employment solicitors will point to the case of Grainger plc v Nicholson as setting out the key principles to be observed when considering an argument of philosophical belief. In a recent case that will be of interest to all UK employment lawyers the Employment Appeal Tribunal considered a case where the claimant was the only individual to hold the particular philosophical belief.
Philosophical belief in the Equality Act
The Equality Act 2010, specifically s. 10(2) defines religion or belief as including
“…any religious or philosophical belief…”
Even the best Employment lawyer can struggle with what constitutes a philosophical belief – and the Employment Tribunal has been faced with many different beliefs and has had to decide whether each one is a philosophical belief as claimed. Grainger plc v Nicholson lays down 5 hurdles, well known to the best London employment solicitors that a claimant must cross in order to satisfy the demonstration. These are:
1. That the belief is genuinely held by the claimant
2. That it is not an opinion or viewpoint but a genuine belief
3. That the belief relates to a weighty and substantial aspect of human life and behaviour
4. That it has attained a certain level of cogency, seriousness, cohesion and importance
5. That the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the rights of others
For any Employment claim solicitors representing someone who is claiming discrimination on grounds of philosophical belief, it’s vital to understand how these principles work in practice
The facts of Gray v Mulberry Company (Design) Ltd - and the ‘cogency’ of the belief
In this case, the Claimant, a writer and filmmaker, began work with Mulberry, the luxury design company as a marketing support assistant. Although she signed her contract of Employment, she refused to sign an agreement which related to intellectual property created during the course of her Employment. She felt that the agreement could extend not only to copyright in any designs she created for Mulberry but could extend to cover her own artistic works. Mulberry attempted to clarify that it was only interested in her work with Mulberry, and amended the wording in the agreement, but she continued to refuse to sign and was eventually dismissed some 9 months after starting work.
After a false start claiming unfair dismissal on grounds of asserting a statutory right (the ‘right’ being the right to own her own copyright and intellectual property), she claimed that she had been discriminated against both directly and indirectly on the grounds of her philosophical belief in
“The statutory human or moral right to own the copyright and moral rights of her own creative works and output.”
The Employment Tribunal determined that, with reference to the Grainger principles, the Claimant employee’s belief lacked cogency. She had never told the Respondent employer of her belief and the employer did not have any knowledge of her belief. She was dismissed for failing to sign the contract and not because of her philosophical belief.
Indirect discrimination when only one person holds the belief
Perhaps the case is more interesting to any top employment law firm for the Employment Appeal Tribunal’s findings on indirect discrimination. The Tribunal held that the ‘principal, criterion or practice’ in question – which was the requirement to sign the agreement - did not put other people sharing her belief at a disadvantage. There was no evidence – because the Claimant employee was essentially in a group of one – that others with the same belief would find the clause contrary to this particular philosophical belief. Even if it did, it was a proportionate means of achieving a legitimate aim – protecting the employer’s intellectual property.
The Employment Appeal Tribunal’s conclusion on indirect discrimination
The Employment Appeal Tribunal was satisfied that the Employment Tribunal had considered the correct test, namely whether ‘others’ holding the Claimant’s belief had been disadvantaged. The Employment Appeal Tribunal then went on to consider the argument put forward by the Claimant employee that the requirement for ‘group disadvantage’ should be ‘read down’ to the point where there was no requirement to show any group disadvantage in cases of religious or philosophical belief discrimination. Ultimately, it rejected this argument. Referring to the recent decision in Essop v Home Office, and the analysis of Baroness Hale, the Employment Appeal Tribunal concluded that
“…the … recognition that a person holding subjective religious views is not protected by indirect discrimination, applies equally to the sole adherent of a philosophical belief…”
Lessons from Gray v Mulberry Design Ltd
While the key point that this case makes is to highlight that indirect discrimination does not apply in cases where the philosophical belief is only held by one person, the case is also of interest to Employment claim solicitors who may find themselves faced with a similar case. It will be important to test the evidence of an employee who seeks to rely on a philosophical belief to establish whether he or she has made the belief known in the workplace and to the employer. Otherwise, the claim of direct discrimination may also fail to get off the ground.
For any aspect of employment law advice and support, OTS Solicitors, employment lawyers in London, are available to assist. We represent employers and employees in all aspects of contentious Employment disputes and offer non-contentious advice covering Employment contracts, policies and staff handbooks. We can also provide bespoke training for organisations on employment law. To discuss your employment law needs, please call 0203 959 9123.