What constitutes a protected belief in the UK? What constitutes a protected belief in the UK?

What constitutes a protected belief in the UK?
04 Sep 2018

The UK’s Equality Act 2010 provides protection in the workplace from discrimination on the basis of religion or belief, but it also covers certain philosophical convictions too. In fact, a number of employment tribunals have confirmed that philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as religious convictions are.    

Since discrimination on the grounds of religion or belief became unlawful, there have been some interesting cases that consider what counts as a protected philosophical conviction or not – and the stakes can be high if employers get it wrong. In contrast with unfair dismissal claims, compensation for discrimination is potentially uncapped, and there is no two-year qualifying service requirement.

There was an interesting case in July 2018 when the Employment Appeals Tribunal considered a religion or belief claim based on an alleged protected philosophical conviction: that copyright should exist over creative works.

Is having copyright over your own creative works a protected philosophical belief in law?

In the case of Gray v Mulberry Company (Design) Ltd, Ms Gray, the employee who brought the claim, had worked for luxury handbag designer, Mulberry, as a market support assistant. The role meant she had access to some product designs before they were launched.

As a result, Ms Gray was asked to sign an agreement to protect Mulberry’s intellectual property rights in relation to its designs. It also placed an obligation on her to assign all copyright and other proprietary rights to Mulberry in all works and designs originated, conceived, written or made by her during the course of her employment.

But Ms Gray refused to sign, saying that to do so interfered with her own work as a writer and filmmaker outside of her work for Mulberry. Mulberry agreed to revise the wording of the agreement to make it clear that only the work relating to its business was covered.

But Ms Gray was still not happy with the wording and refused to sign. After several months and numerous meetings, she was dismissed for refusing to comply with the conditions of her employment. Therefore, she commenced a claim for direct and indirect discrimination on the grounds of belief.

This belief, she said, was “the statutory human or moral right to own the copyright and moral rights of her own creative works and output”. But she lost her claim as the Tribunal found that:

  • The belief she relied upon was not sufficiently cohesive to form any cogent philosophical belief system;
  • Her expression of a belief in an individual’s right to create was different from the benefit she derived from creative activities;
  • She had not provided any evidence of a group sharing this belief who were disadvantaged; and
  • Even if there had been indirect discrimination, her employer was justified in requiring protection for its designs.

Ms Gray appealed, but the appeal was dismissed. The judge found it relevant that she had not at any stage made her belief known to Mulberry.

The only reason she gave for not signing at the time, in fact, was that Mulberry would obtain rights over her creative output. She also had a commercial concern that the situation might make it difficult to sell her work.

But there was no suggestion when she was employed that her refusal to sign was motivated by a philosophical belief. Her objections could be described as purely commercial and designed to protect her own private interests.

Which beliefs count as protected philosophical convictions?

While it would be impossible to compose a statutory list of all beliefs and whether they qualify for protection or not, the test set out by the Employment Appeals Tribunal (which was also applied in the Mulberry case above) is as follows - so the belief must:

  • Be genuinely held;
  • Be a belief rather than an opinion or viewpoint based on the present state of information available;
  • Be a belief about a weighty and substantial aspect of human life and behaviour;
  • Attain a certain level of cogency, seriousness, cohesion and importance, although it does not need to allude to a fully-fledged system of thought;
  • Be worthy of respect in a democratic society and neither be incompatible with human dignity nor conflict with the fundamental rights of others.

The cases involving this test are inevitably highly fact-specific. Some examples of expressed beliefs that qualify for protection are:

  • A belief in the higher purpose of public service broadcasting in order to encourage debate and citizenship in a public place;
  • Darwinism;
  • A belief in public service and the need to engender in others a desire and commitment to serve the community for the common good;
  • Democratic socialism;
  • Belief in spiritualism, life after death and the ability of mediums to contact the dead;
  • A belief in the sanctity of life extending to a fervent anti-fox hunting and anti-hare coursing belief;
  • A belief that mankind is heading towards catastrophic climate change and, therefore, that we are under a moral duty to lead our lives in a manner that mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same;
  • A profound belief in the proper and efficient use of public money in the public sector;
  • A belief that it is wrong to lie under any circumstances.

The following beliefs have been found, on the facts of particular cases before the tribunals, not to qualify for statutory protection:

  • A belief that people should pay their respects by wearing a poppy from 2 November to Remembrance Sunday; 
  • Beliefs that the 9/11 and 7/7 attacks were “false flag operations” authorised by the US and UK governments, and that the media is controlled by a global elite seeking a new world order;
  • Membership of the extreme right-wing British National Party. 

More cases are also likely to emerge in this interesting, and often controversial, area of legislation, not least because employees’ religious beliefs sometimes conflict with other types of discrimination that is protected by law, including discrimination on the grounds of gender and sexual orientation. As political convictions can also be protected, it may not be long before we see cases in relation to strongly-held, and robustly-expressed, beliefs in relation to Brexit

Anne-Marie Balfour

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP.  She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press. 

The UK’s Equality Act 2010 provides protection in the workplace from discrimination on the basis of religion or belief, but it also covers certain philosophical convictions too. In fact, a number of employment tribunals have confirmed that philosophical beliefs may be just as fundamental or integral to a person’s individuality and daily life as religious convictions are.    

Since discrimination on the grounds of religion or belief became unlawful, there have been some interesting cases that consider what counts as a protected philosophical conviction or not – and the stakes can be high if employers get it wrong. In contrast with unfair dismissal claims, compensation for discrimination is potentially uncapped, and there is no two-year qualifying service requirement.

There was an interesting case in July 2018 when the Employment Appeals Tribunal considered a religion or belief claim based on an alleged protected philosophical conviction: that copyright should exist over creative works.

Is having copyright over your own creative works a protected philosophical belief in law?

In the case of Gray v Mulberry Company (Design) Ltd, Ms Gray, the employee who brought the claim, had worked for luxury handbag designer, Mulberry, as a market support assistant. The role meant she had access to some product designs before they were launched.

As a result, Ms Gray was asked to sign an agreement to protect Mulberry’s intellectual property rights in relation to its designs. It also placed an obligation on her to assign all copyright and other proprietary rights to Mulberry in all works and designs originated, conceived, written or made by her during the course of her employment.

But Ms Gray refused to sign, saying that to do so interfered with her own work as a writer and filmmaker outside of her work for Mulberry. Mulberry agreed to revise the wording of the agreement to make it clear that only the work relating to its business was covered.

But Ms Gray was still not happy with the wording and refused to sign. After several months and numerous meetings, she was dismissed for refusing to comply with the conditions of her employment. Therefore, she commenced a claim for direct and indirect discrimination on the grounds of belief.

This belief, she said, was “the statutory human or moral right to own the copyright and moral rights of her own creative works and output”. But she lost her claim as the Tribunal found that:

  • The belief she relied upon was not sufficiently cohesive to form any cogent philosophical belief system;
  • Her expression of a belief in an individual’s right to create was different from the benefit she derived from creative activities;
  • She had not provided any evidence of a group sharing this belief who were disadvantaged; and
  • Even if there had been indirect discrimination, her employer was justified in requiring protection for its designs.

Ms Gray appealed, but the appeal was dismissed. The judge found it relevant that she had not at any stage made her belief known to Mulberry.

The only reason she gave for not signing at the time, in fact, was that Mulberry would obtain rights over her creative output. She also had a commercial concern that the situation might make it difficult to sell her work.

But there was no suggestion when she was employed that her refusal to sign was motivated by a philosophical belief. Her objections could be described as purely commercial and designed to protect her own private interests.

Which beliefs count as protected philosophical convictions?

While it would be impossible to compose a statutory list of all beliefs and whether they qualify for protection or not, the test set out by the Employment Appeals Tribunal (which was also applied in the Mulberry case above) is as follows - so the belief must:

  • Be genuinely held;
  • Be a belief rather than an opinion or viewpoint based on the present state of information available;
  • Be a belief about a weighty and substantial aspect of human life and behaviour;
  • Attain a certain level of cogency, seriousness, cohesion and importance, although it does not need to allude to a fully-fledged system of thought;
  • Be worthy of respect in a democratic society and neither be incompatible with human dignity nor conflict with the fundamental rights of others.

The cases involving this test are inevitably highly fact-specific. Some examples of expressed beliefs that qualify for protection are:

  • A belief in the higher purpose of public service broadcasting in order to encourage debate and citizenship in a public place;
  • Darwinism;
  • A belief in public service and the need to engender in others a desire and commitment to serve the community for the common good;
  • Democratic socialism;
  • Belief in spiritualism, life after death and the ability of mediums to contact the dead;
  • A belief in the sanctity of life extending to a fervent anti-fox hunting and anti-hare coursing belief;
  • A belief that mankind is heading towards catastrophic climate change and, therefore, that we are under a moral duty to lead our lives in a manner that mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same;
  • A profound belief in the proper and efficient use of public money in the public sector;
  • A belief that it is wrong to lie under any circumstances.

The following beliefs have been found, on the facts of particular cases before the tribunals, not to qualify for statutory protection:

  • A belief that people should pay their respects by wearing a poppy from 2 November to Remembrance Sunday; 
  • Beliefs that the 9/11 and 7/7 attacks were “false flag operations” authorised by the US and UK governments, and that the media is controlled by a global elite seeking a new world order;
  • Membership of the extreme right-wing British National Party. 

More cases are also likely to emerge in this interesting, and often controversial, area of legislation, not least because employees’ religious beliefs sometimes conflict with other types of discrimination that is protected by law, including discrimination on the grounds of gender and sexual orientation. As political convictions can also be protected, it may not be long before we see cases in relation to strongly-held, and robustly-expressed, beliefs in relation to Brexit

Anne-Marie Balfour

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP.  She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press.