Since its inception in 2003 case law on what amounts to a philosophical belief has perhaps been at the more interesting end of case law reading. To date, employment tribunals have upheld a variety of philosophical beliefs as being worthy of protection, including those based on:-
· Environmentalism and belief in climate change
· Anti fox hunting belief
· A belief in the "higher purpose" of public service broadcasting
· A belief in public service for the common good
· A belief that lying is always wrong
· Democratic socialist beliefs
· A belief mediums can communicate with the dead
Equally a number of other beliefs have not met the requirements of a philosophical belief:-
· Belief that 9/11 and 7/7 were "false flag" operations
· Belief that poppies should be worn in early November
· Membership of the BNP
· Marxist/Trotskyist beliefs
· Belief that Jews are God's chosen people
· Belief that homosexuality is contrary to God's law
· Belief that the holocaust did not happen
Some of these decisions, both positive and negative, may seem surprising but they are based on the guidance of the EAT in Grainger plc and others v Nicholson which set out a number of requirements:-
· The belief must be genuinely held
· It must be a belief not an opinion or viewpoint based on the present state of information available
· It must relate to a weighty and substantial aspect of human life and behaviour
· It must attain a certain level of cogency, seriousness, cohesion and importance
· It must be worthy of respect in democratic society and not incompatible with human dignity or the fundamental rights of others
· It must have a similar status or cogency to a religious belief
· It need not be shared by others
· It may be a political philosophy or doctrine
· It may be based on science
The latest chapter in this evolving area of law is Gray v Mulberry Company (Design) Ltd. The Claimant asserted that a belief in "the statutory human or moral right to own the copyright and moral rights of her own creative works and output" amounted to a philosophical belief.
The Claimant had taken up employment with Mulberry as a Market Support Assistant which gave her access to designs ahead of their launch to the market. As such, she was asked to sign a copyright agreement providing for disclosure of copyright works or designs created during her employment to Mulberry and for the assignation of copyright and proprietary rights to all copyright works created during her employment to the company. The Claimant was, however, also a writer and filmmaker and she believed that the agreement could extend to her artistic activities away from work and therefore refused to sign it. Despite Mulberry offering an amended agreement which sought to limit the extent of the agreement to matters relating to the business of Mulberry or from her employment with Mulberry, the Claimant still refused to sign as she felt the words were general and open to interpretation. At no time during the Claimant's employment did she state she had a philosophical belief in protection of the ownership of her artistic creations.
Matters eventually came to a head and the Claimant was dismissed for refusing to comply with the conditions of her employment through her refusal to sign the copyright agreement. The Claimant initially lodged a claim for unfair dismissal on the grounds of asserting a statutory right - namely the right to her own copyright and IP - but when it quickly became clear that this would not fall within the scope of section 104 of the Employment Rights Act 1996 (from where the right to make such a claim derives) she was allowed to amend the claim to one of discrimination on the ground of belief.
However, the Employment Tribunal concluded that the asserted belief was not sufficiently cohesive to form any cogent philosophical belief system as set out in Grainger plc and others v Nicholson. On appeal by the Claimant, the EAT upheld the decision of the Employment Tribunal. The EAT held that the Claimant's actions had done little more than indicate she was concerned about losing control of the copyright to her private creative output, that the objection to signing could be described as purely commercial and designed to protect her private interest.
The EAT also found that, had the Claimant established a philosophical belief she could not have been indirectly discriminated against because there was no evidence to suggest that anyone other than the Claimant held such a belief. That meant she would be unable to show she was part of a disadvantaged group, a requirement for a successful indirect discrimination claim.
In this case the belief, which in theory should have had a level of importance equivalent to that of a religion for the Claimant, was not something that she had made mention of at any time when trying to explain why she could not sign the copyright agreement. That fact, in itself, meant she was always going to struggle to persuade a tribunal that her belief had the level of cogency, seriousness, cohesion and importance to qualify for protection under the Equality Act 2010. Permission has though been given to appeal to the Court of Appeal.