Professor’s ‘anti-Zionist’ beliefs were protected

Background

Dr David Miller was employed by the University of Bristol (the University) as a professor of political sociology from 1 September 2018 to 1 October 2021, when he was dismissed for gross misconduct. He was already an established academic when he joined the University and his academic work was well known, political and would have been viewed by some as controversial.

Dr Miller’s research interests were in ‘concentrations of power in society and how they might be democratised and made accountable’, according to a biography on the university website which went on to say he ‘works on corporate power, lobbying, public relations and propaganda – especially of the British government, think tanks, Islamophobia, the Zionist movement, corporate influences on health and science, conflict of interest and the financing of the conservative movement.’

Miller defines ‘Zionism’ as an ideology that asserts that a state for Jewish people ought to be established and maintained in the territory that formerly comprised the British Mandate of Palestine and he views it as ‘inherently racist, imperialist, and colonial’ and therefore offensive to human dignity and he is opposed to it.

He believes that the foundation of Israel was racist because it was, in his words, ‘founded on ethnic cleansing and settler colonialism’.

He considers that the Northern Ireland, South African and Palestinian conflicts are all ‘settler-colonial’ conflicts. He also describes himself as ‘anti-Loyalist’ but not anti-Protestant’ and ‘anti-Afrikaner nationalist’ (but not anti-white). He denies that his anti-Zionism is linked to antipathy towards Jews or Judaism.

The issues for consideration before the Tribunal in Dr Miller’s case all took place before the attacks by Hamas on Israel of 7 October 2023 and the subsequent war in Gaza. Those events did not therefore play any part in the Tribunal’s judgment.

First complaints against Dr Miller

On 18 February 2019, Dr Miller delivered a lecture on Islamophobia which attracted complaints from two Jewish students at the University. The complaints were raised anonymously via the Community Security Trust (the CST). The complainants stated that, in this lecture, Dr Miller had apparently blamed certain UK ‘Zionist’ Jewish organisations (including the CST) for causing Islamophobia. The complaint stated that the anonymous students ‘were extremely upset by hearing and seeing what they felt to be an antisemitic lecture’. The CST complaint was followed by a complaint letter from the then President of the Bristol Jewish Society (the JSoc), and the then President of the Union of Jewish Students (UJS). This letter stated that while they supported the rights of anti-Israel students and academics to express their views, ‘Miller’s anti-Israel discourse [had] fallen into antisemitism’.

The University appointed Ms Aileen McColgan KC, a barrister specialising in equalities and employment law, to investigate the first complaints. Following a lengthy investigation, Ms McColgan concluded that there was no formal case to answer in connection with any of the matters investigated. Her report included a finding that Dr Miller’s expressed views do not express ‘hatred towards Jews’, and that he was at pains to distinguish between Zionism and Israel, on the one hand, and Jewish people, on the other. The report found that while Dr Miller’s views may be characterised as ‘harsh’, they did not amount to antisemitism. The report was delivered on 4 December 2020, almost two years after Miller’s controversial lecture.

Second complaints against Dr Miller

Following the delivery of Ms McColgan’s first report, Dr Miller went on to make further comments about Israel and Zionism which attracted a lot of complaints (as well as support). In short, in February 2021 Dr Miller made comments at an event on free speech and in various written publications which set out his views on Zionism and Israel. He also made direct criticisms of the University’s Jewish Society (or, ‘JSoc’), stating: ‘Bristol’s JSoc, like all JSocs, operates under the auspices of the Union of Jewish Students (UJS), an Israel lobby group. The UJS is constitutionally bound to promoting Israel and campaigns to silence critics of Zionism or the State of Israel on British campuses’. He also declared Jewish students to be Israel’s ‘political pawns’.

Following these comments, the University was subject to a lot of public criticism. In response, the University commissioned both another investigation by Ms McColgan and a separate investigation by a retired Emeritus Professor of the University, Professor Banting.

Ms McColgan concluded that Dr Miller’s February 2021 comments had not exceeded the boundaries of acceptable speech, although she acknowledged that certain of his statements would be ‘offensive to many’. Importantly, she again concluded that none of his statements in question were ‘antisemitic or amount to or involve discrimination’. Professor Banting considered the slightly different issue of whether there was a case to answer in respect of Dr Miller potentially breaching University policies. Professor Banting found that there was a case to answer, and the matter progressed to a disciplinary process.

The outcome of that disciplinary process was that the decision-maker, Professor Norman, found that Dr Miller’s February 2021 statements breached University policies including the Equality and Diversity policy and the Acceptable Behaviour at Work Policy. While recognising in her report the importance of freedom of speech and academic freedom, Professor Norman concluded that Dr Miller’s actions constituted gross misconduct. In particular, she referenced the fact that Dr Miller had ‘singled out students and student societies for criticism’, and that he had failed to show sufficient ‘responsibility, diligence and care’ in his statements and the way he made them.

Professor Norman explained that she had deliberated over whether any sanction less than summary dismissal would be appropriate and proportionate and had concluded that it would not. Dr Miller was therefore dismissed without notice on 1 October 2021. He appealed, and his dismissal was upheld.

Dr Miller’s comments post-employment

Following the end of his employment with the University, Dr Miller has gone on to make further public statements which have been labelled by critics as antisemitic. For example, in August 2023 he tweeted that ‘Jews are not discriminated against’ and that ‘they are overrepresented … in positions of cultural, economic and political power’. Dr Miller confirmed in cross-examination during the hearing that these statements were not impacted by the fact he had left the University’s employment, and that he would have posted along the same lines even if he were still employed by them.

The law

The Equality Act 2010 prohibits discrimination on grounds of a defined list of ‘protected characteristics’. One of those is religion (which clearly would cover Judaism) or philosophical belief. This case concerns the latter, and further addresses the question of when a philosophical belief may be protected under the Equality Act (and with what caveats).

Following decisions such as Forstater, it is clear that even offensive philosophical beliefs can nevertheless attract protection, meaning that it is unlawful for an employee (or service user) to be discriminated against because of that belief. It is also clear that this protection provides a limited right to manifest that belief, in addition to holding it. So, not only can an employer not dismiss an employee simply for holding a belief many consider offensive (and even discriminatory); they must also permit that employee a limited right of manifesting that belief.

This includes qualified protection for what the case law refers to as ‘objectionable manifestations’ of the belief in question.

An employer can discipline or dismiss an employee for manifesting a protected belief provided that the employer’s action is taken in pursuit of a legitimate aim and it’s not disproportionate.

Were his beliefs protected?

The respondent had argued that his beliefs did not meet the ‘Grainger’ criteria – the test for protected beliefs set out in the case of Grainger v Nicholson and discussed in our article on the Forstater decision.

To be protected, a belief must:

• be genuinely held;
• be a belief and not an opinion or viewpoint based on the present state of information available (i.e. a belief rather than a more provisional or tentative view);
• be about a weighty and substantial aspect of human life and behaviour;
• attain a certain level of cogency, seriousness, cohesion and importance; and
• be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The University challenged whether Miller’s beliefs met various parts of this test, but the most serious challenge was to whether it met the last criterion. But as the EAT reiterated in the Forstater decision, ‘very few beliefs’ fall at the last hurdle. Only those akin to pursuing totalitarianism, or advocating Nazism or espousing violence and hatred in the gravest of forms are deemed ‘not worthy or respect in a democratic society’.

The tribunal accepted that Dr Miller was not supportive or open to violence as a means of opposing Zionism. And that he was not opposed to the idea of Jewish self-determination or of a predominantly Jewish state existing but rather, as he said, to the exclusive realisation of Jewish rights to self-determination within a land that is home to a very substantial non-Jewish population. That might be a purely hypothetical concession, as there may not be anywhere for such a state to exist. Provided he was in good faith, however, this would not prevent his belief from being protected. A foolish or impractical idea does not lose protection.

As the tribunal made clear, many people would disagree with Dr Miller’s beliefs and many will find them offensive. But, as the tribunal ultimately found, they were still protected. The fact that they are protected beliefs, however, does not mean he could necessarily voice them with impunity in the workplace. As set out above, there are limits on an individual’s rights to manifest their protected beliefs in the workplace.

Discrimination claims

The tribunal found that Miller was dismissed because of the manifestations of his (protected) anti-Zionist beliefs. The University had argued that, even if his beliefs were protected, his right to express them was qualified and the dismissal was permissible because Miller was in breach of the University’s conduct ordinances and Acceptable Behaviour at Work and Equality and Diversity policies. The university said it had the ‘legitimate aims’ in dismissing him of balancing the human rights of others and protecting its reputation and interests.

The tribunal agreed that these were legitimate aims but found the decision to dismiss to be disproportionate. The tribunal found that a less intrusive means (such as disciplinary action) could have been used to achieve the university’s legitimate aims. The claimant succeeded in a claim for direct discrimination in relation to his dismissal.

Unfair dismissal claim

Because the dismissal was tainted by discrimination it was unsurprisingly found to be unfair.

The tribunal did find however that Miller’s conduct had contributed to the dismissal and that any unfair dismissal award should be reduced by 50 per cent. This is perhaps unsurprising given his specific comments about certain student groups, and considering the power imbalance between them.

Finally, the tribunal found that there was a 30 per cent chance Miller would have been fairly dismissed after making the August 2023 tweets, if he had been still employed. The tribunal viewed those tweets as of ‘a different order’ to his previous comments and found there was no coherent link between them and his protected beliefs. The findings of contributory conduct and the chance of future dismissal will limit the compensation he might receive for unfair dismissal.

Implications for employers

• It is significant that two reports commissioned by the University expressly found that Dr Miller’s comments did not amount to discrimination or antisemitism. This is important because it meant that the University was unable to argue that it had decided to dismiss Dr Miller in order to prevent discriminatory comments being made against students or other academics, which could have been a substantial balancing factor. As it stood, the Tribunal did not comment on how this might have impacted the outcome of the case. Employers should bear this in mind in relation to internal disciplinary processes concerning statements which are alleged to be discriminatory. While there may be a reluctance to find directly that a comment or action was discriminatory, a failure to do so may make it more difficult for the employer to take action about the employee.
• Nevertheless, while Dr Miller’s comments were not argued by the University to be discriminatory, it is plain to see that they caused significant distress to many who read or heard them, and that many found them to be profoundly offensive. This is therefore another case which suggests that employers who take a default ‘zero tolerance’ approach to statements which are capable of causing widespread and significant offense risk discrimination claims (if the statement relates to a belief that is capable of protection under the Equality Act).
• In the balancing exercise, Dr Miller’s freedom of speech bore significant weight. This is to be expected in an academic context, where the ability to share and debate ideas is key to the employer’s raison d’etre. The Tribunal commented on the ‘chilling’ effect the dismissal may have on academics more widely, i.e. that it may deter others from expressing views as part of academic debate. It is reasonable to expect that this factor would not be given as much weight in other industries as it was in this academic case.
• The Tribunal explicitly applied the guidance on proportionality set out in the EAT’s recent decision in the case of Higgs. Pivotally, while the Tribunal agreed with the University that some level of disciplinary sanction against Dr Miller would have been appropriate and proportionate, it found that summary dismissal was disproportionate and therefore discriminatory. The takeaway for employers is that failing to properly consider whether a less severe sanction may be appropriate appears to pose discrimination risks. This is likely to cause particular challenges given the increasing pressures employers are under to show a ‘zero tolerance’ approach to employees who express views which cause offence (even where this offence is significant and widespread, as was clearly so in Dr Miller’s case).
• The practical application for employers will be to expressly consider the full range of disciplinary sanctions available, and not default to applying the most severe sanction in response to the strength of complaints raised. For example, if dismissal is the only viable option, consider whether the employee should be dismissed with notice (rather than the most severe sanction of summary dismissal).
• All of that said, it is noteworthy that the University explicitly considered this question, and determined that no lesser sanction would have been appropriate, and this was nevertheless found to be discriminatory.
• The tribunal also took into account the fact that the University had not always been consistent in the way it treated similar comments (both by Miller and by other academics) which may similarly have impacted on its reputation and on the human rights of others. The University would have had a better chance of arguing that dismissal was proportionate, if it had applied its policies consistently. By failing to be consistent, the University looked as though it was influenced by the media firestorm, rather than taking a reasoned decision on the facts. As ever, employers should closely follow their own internal policies (and ensure that these are fit for purpose, even if there is no live matter at present).
• As ever, employers should ensure they are as consistent as possible in their decision-making. If a similar set of facts previously led to no formal sanction, imposing a serious disciplinary sanction is more likely to be found to be unfair or even discriminatory (depending on the facts).
• This case also serves to highlight the polarisation of contentious issues, in particular in social media. For example, the Tribunal noted that Dr Miller had been accused (in a tweet) of “calling for ethnic cleansing or genocide”, while it expressly found that he had not done so.

It is noteworthy that Dr Miller’s case took place within the context of academia, where free speech will be particularly prioritised. His beliefs related closely to his area of professional expertise, so this also engaged his academic freedom. Other professions where freedom of speech may be similarly important might include the press, think tanks, and publishing houses.

We could potentially expect free speech to carry less weight in the balancing exercise if, for example, a case concerned a senior director of a company who had made similar comments about one of the internal employee DE&I groups. While this would not change the fundamental right of that employee not to be discriminated against for holding their (protected) beliefs, we might expect free speech to be less of a priority within a conventional corporate context, meaning that it might be proportionate and lawful for the employer to take more assertive action.

Miller v University of Bristol – judgment available here.