Anna Gray v Mulberry Company (Design) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean |
| Judgment Date | 17 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1720 |
| Docket Number | Case No: A2/2018/2312/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2019 |
[2019] EWCA Civ 1720
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MR JUSTICE CHOUDHURY
UKEAT/0040/17
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lady Justice Simler
and
Lord Justice Arnold
Case No: A2/2018/2312/EATRF
Christopher Milsom and Rachel Barrett (instructed by Bindmans LLP) for the Appellant
Tariq Sadiq (instructed by Croner Group Limited) for the Respondent
Hearing dates: 8 & 9 October 2019
Approved Judgment
This is the judgment of the court to which we have all contributed.
Factual background
The Respondent is a well-known design company which produces luxury leather handbags and other fashion items. The Claimant is a writer and film-maker. She commenced employment with the Respondent as a Market Support Assistant on 28 January 2015. She was part of a team which had access to some of the Respondent's designs ahead of their launch to market.
The Respondent seeks to protect its intellectual property rights by requiring all its employees (who number approximately 1500) to sign a contract of employment and a Confidentiality and Copyright Form, to which we shall refer as “the Copyright Agreement”.
The contract of employment contained a confidentiality clause and (at clause 13) a clause relating to “Inventions, Improvements and Patents” in the following terms:
“You shall disclose to the Company any discovery or invention or improvement to an existing invention, design or process. improvements, designs or inventions, whether capable of registration or not, made by you during the course of your employment with the Company, shall be the property of the Company and you will sign all documents and do all necessary acts required to transfer title in such improvements or inventions to the Company without any additional compensation or payment, save for any expenses or disbursements incurred for the purposes of transferring title to the Company. Nothing in this clause shall affect any rights conferred by the Patents Act 1977, the Copyright, Designs and Patents Act 1988 or any statutory modification or re-enactment thereof.”
The Copyright Agreement provided as follows:
“2.1. You undertake that you shall promptly disclose to Mulberry Company all copyright works or designs originated, conceived, written or made by you alone or with others during the period of your service with Mulberry Company and shall hold them in trust for Mulberry Company until such rights shall be fully and absolutely vested in Mulberry Company.
2.2. You hereby assign to Mulberry Company by way of future assignment of copyright, the copyright and other proprietary rights, if any, for the full term thereof throughout the world in respect of all copyright works and designs originated, conceived, written or made by you during the period of your service with Mulberry Company.
2.3. You hereby unconditionally and irrevocably waive in favour of Mulberry Company and all moral rights conferred on you by Chapter IV of Part 1 of the Copyright Designs and Patent Act 1988 for any work in which copyright or designs is vested in Mulberry Company whether by operation of this clause or otherwise.
2.4. You agree and undertake that you will execute such deeds or documents and do all such things and acts as may be necessary or desirable to substantiate the rights of Mulberry Company in respect of the matters referred to in this clause. Each of the above terms is independent and separable from the remaining terms and enforceable accordingly. If any term shall be unenforceable for any reason but would be enforceable if part of the wording thereof were deleted, it shall apply with such deletions as may be necessary to make it enforceable.
The Claimant signed the contract of employment on 30 January 2015. However, she refused to sign the Copyright Agreement. She told the Respondent's HR department that she had difficulty signing it because it interfered with her own work as a writer and film-maker. She said that she had read the clause very carefully because “it is extremely important to me to own all rights, including copyright, to my own writing, film making and all creative output”. She believed that the Copyright Agreement could extend to her artistic activities away from work.
The Respondent made it clear that it had no interest in obtaining the copyright to any of the Claimant's personal work; its interest only extending to that which related to its business. The Respondent responded to the Claimant's concerns by amending the standard Copyright Agreement to narrow it so that only work which related to the Respondent's business would be covered. Clauses 2.1 and 2.2 were amended as follows (amendments are shown in italics):
“2.1. You undertake that you shall promptly disclose to Mulberry Company all copyright works or designs originated, conceived, written or made by you alone or with others during the period of your service with Mulberry Company which relate to any business of Mulberry Company or any matter arising from your employment with Mulberry and shall hold them in trust for Mulberry Company until such rights shall be fully and absolutely vested in Mulberry Company.
2.2. You hereby assign to Mulberry Company by way of future assignment of copyright, the copyright and other proprietary rights, if any, for the full term thereof throughout the world respect of all copyright works and designs originated, conceived, written or made by you during the period of your service with Mulberry Company which relate to any business of Mulberry Company or any matter arising from your employment with Mulberry.”
These proposed amendments did not satisfy the Claimant. She considered that the additional words were “general and open to interpretation”. On 30 April 2015 she proposed instead an agreement in the following terms:
“The Employee (Anna Gray) holds an administrative role and has no contact with or part in the creation of copyrighted works for Mulberry Company.
The Employee holds all copyright and other propriety rights, to her own existing and future works in any form, media or technology now known or hereafter developed for the full term thereof throughout the universe.
The Employee hereby assigns to Mulberry Company by way of future assignment of copyright, the copyright and other proprietary rights, if any, for the full term thereof throughout the world, in respect of any future copyright works and designs, originated, conceived, written or made by the Employee at the behest of Mulberry Company and during the Employee's contracted working hours at Mulberry Company and for the furtherance of the business of Mulberry Company.”
The discussions about the Copyright Agreement continued over subsequent months but no resolution was reached. Matters came to a head on 16 September 2015 when a series of meetings took place between HR and the Claimant. As the Claimant had refused to sign the amended version of the Copyright Agreement, the amendment was withdrawn and the Claimant was asked again to sign the original version. She made it clear that she would not sign. After some consideration, the Claimant was dismissed with notice.
The Claimant's dismissal was confirmed in writing on 22 September 2015. That letter, so far as relevant, stated that:
“Following our discussions, I have decided to dismiss you with effect from 16th September 2015. The reason for your dismissal is refusing to comply with conditions of your employment with Mulberry through your refusal to sign the Copyright Agreement and that we believe that by refusing to sign it you intend to copy Mulberry products which puts the Company at risk.”
On 1 February 2016 the Claimant lodged proceedings for unfair dismissal on the grounds of asserting a statutory right, namely the right to own her own copyright and intellectual property. That statutory right falls outside the scope of s 104 of the Employment Rights Act 1996; and the Claimant did not have sufficient length of service to claim “ordinary” unfair dismissal. At a hearing before the Regional Employment Judge on 3 June 2016 she was given permission to amend her claim to one of discrimination (direct and indirect) on the grounds of belief.
Section 4 of the 2010 Act provides that religion or belief is a protected characteristic for the purposes of that Act. Section 10, so far as relevant, provides:
“(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
(3) In relation to the protected characteristic of religion or belief — (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief; (b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.”
Section 19(1)-(2), headed “indirect discrimination”, provides:-
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.”
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
The 2010 Act does not define “philosophical belief” but guidance is provided by paragraphs 2.52 and...
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