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Professor’s anti-Zionist beliefs found to be protected under Equality Act 2010

20 February 2024

Dismissal was discriminatory and unfair.

Dealing with opposing beliefs and clashing equality rights in the workplace can be extremely challenging for employers. We often advise our clients on complex cases of this kind where there may be no risk-free option for the employer and, along with employment law risks, there is potential for damage to reputation and stakeholder relationships.  

A recent case in the employment tribunal concerning the dismissal of a university professor with anti-Zionist beliefs has brought into focus once again the risks for employers where an employee is disciplined or dismissed for expressing controversial but protected beliefs.  

When will a belief be protected? 

Religious or philosophical beliefs are protected under the Equality Act if they are: genuinely held; a belief rather than an opinion or viewpoint; relate to a weighty and substantial aspect of human life and behaviour; are cogent, serious, cohesive, and important; are worthy of respect in a democratic society; are not incompatible with human dignity; and do not conflict with the fundamental rights of others. 

Under the Human Rights Act, employment tribunals are required to read and give effect to the Equality Act in a way which is, so far as possible, compatible with the rights conferred by the European Convention on Human Rights (ECHR). In the case of protected beliefs, this means being consistent with Articles 9 (freedom of thought, conscience and religion and the freedom to manifest a religion or belief) and 10 (freedom of expression) of the ECHR. These human rights are qualified rights. This means that interference with them may be lawful if it is prescribed by law, proportionate and necessary in pursuit of a legitimate aim. 

In Forstater v CGD Europe and others, which concerned protected “gender-critical” beliefs the EAT summarised the relevant ECHR principles when considering whether a belief is protected noting that: freedom of expression is one of the essential foundations of democratic society; it is not for the court to inquire into the validity of a belief; the freedom to hold a belief goes hand-in-hand with the state remaining neutral as between competing beliefs, refraining from expressing any judgment as to whether a particular belief is more acceptable than another, and ensuring that groups opposed to one another tolerate each other; and that the bar for protection of a belief should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the ECHR.  

In Forstater, the EAT stated that only beliefs that would be “an affront to [ECHR] principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms” will be such as are not worthy of respect in a democratic society. The EAT made clear that beliefs which are “offensive, shocking or even disturbing to others” are not excluded from protection. 

You can find our article on the EAT decision in the Forstater case on our website: Claimant’s “gender critical” belief is protected under the Equality Act.   

Manifestation of a protected belief  

Words and actions which have a sufficiently close connection (or “nexus”) to a protected religion or belief are protected as a manifestation of that religion or belief. And any limitation on the manifestation of a belief must be prescribed by law, necessary and proportionate.  

What makes a response proportionate?  

We reported in July 2023 on the EAT case of Higgs v Farmor’s School (see Was dismissal of school employee for gender-critical Facebook posts discriminatory? available on our website)  

In Higgs, the EAT clarified that the tribunal should have considered whether the school’s actions in dismissing Mrs Higgs for posting her views on social media were because of the manifestation of her protected beliefs or because of a justified objection to the manner of expressing those beliefs. Where there is a justified objection, the tribunal should consider whether the disciplinary steps taken were a proportionate means of achieving a legitimate aim.  

The EAT listed the following factors which should be considered when deciding if action taken by an employer because of a justified objection to the manifestation of protected beliefs is proportionate: 

  • the content of the manifestation; 
  • the tone used; 
  • the extent of the manifestation; 
  • the worker's understanding of the likely audience; 
  • the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer's ability to run its business; 
  • whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; 
  • whether there is a potential power imbalance given the nature of the worker's position or role and that of those whose rights are intruded upon; 
  • the nature of the employer's business, in particular where there is a potential impact on vulnerable service users or clients; and 
  • whether the limitation imposed is the least intrusive measure open to the employer. 

Case details: Miller v University of Bristol  

Dr Miller was Professor of Political Sociology at the University of Bristol. In a lecture in 2019 he theorised that Islamophobia in the United Kingdom was driven in significant part by five “pillars”, one of which was said to be the Zionist movement. 

The Community Security Trust (CST) complained to the university, stating it had received complaints from two Jewish undergraduates that Dr Miller had blamed CST and other Jewish organisations for causing Islamophobia. Complaints were also received from the Bristol Jewish Society (Bristol JSoc) and the Union of Jewish Students (UJS).  

John Mann MP, Chair of the All-Party Parliamentary Group against Antisemitism, wrote to the university to raise concerns about circumstances relating to antisemitism at the university. Articles appeared in the press criticising the university for failing to respond properly to these complaints. 

Aileen McColgan KC was then appointed by the university to investigate the initial student complaints and found that there was no formal case to answer. She concluded thatDr Miller’s conduct could not reasonably be categorised as misconduct; that the matters complained of did not reach the threshold of unlawful treatment within the Equality Act 2010 and did not breach the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism; thatDr Millerhad not expressed hatred towards Jews, and was at pains to distinguish between Zionism and Israel, on the one hand, and Jewish people, on the other. 

Dr Miller subsequently expressed his views at a free speech campaign event, including that Jewish students at British universities were being used as political pawns by a violent, racist foreign regime engaged in ethnic cleansingDr Miller referenced a complaint against him by the head of Bristol JSoc and stated that JSocs and the UJS were formally members of the Zionist movement. There was further press and social media commentary on what was said, and the university received a significant volume of correspondence both critical of and in support of Dr Miller.    

A further investigation was carried out by Aileen McColgan KC which concluded that Dr Miller’s language did not exceed the boundaries of acceptable speech taking into account relevant legislation, the university’s policies and ordinances, and the IHRA definition of antisemitism.  

A separate disciplinary process concluded that Dr Miller’s comments had breached relevant rules and policies of the university as they were prejudicial to the university’s interests and reputation and to its ability to comply with its Public Sector Equality Duty; failed to treat colleagues and students with respect at work; and were not expressed with tolerance and mutual respect. The disciplinary officer considered that Dr Miller had singled out students and their societies and that this was an abuse of a significant power differential. Dr Miller was summarily dismissed for gross misconduct and his appeal was not upheld. 

Dr Miller brought claims including unfair dismissal, wrongful dismissal and direct belief discrimination to an employment tribunal. 

Dr Miller’s belief was found to be that Zionism, which he defines 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, is inherently racist, imperialist, and colonial. The tribunal found that this belief was protected under the Equality Act.  

When considering whether this belief is worthy of respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others, it noted that very few beliefs will fall at this hurdle. The tribunal noted that the claimant was not supportive of or open to violence as a means of opposing Zionism and did not oppose the idea of Jewish self-determination or a Jewish state. 

Was the dismissal direct belief discrimination?  

The tribunal found that Dr Miller’s dismissal was because of his statements as manifestations of his protected belief.  

The tribunal found the university had acted with the legitimate aims of protecting its reputation and the rights of others to hold religious beliefs and to associate with the University “undaunted by harassment, intimidation or hostility”. However, the tribunal noted that the university’s investigation had concluded that Dr Miller had not made antisemitic comments, had not incited violence and had not posed any threat to anyone’s health or safety. At the same time, dismissal of an academic in these circumstances could have a “chilling effect” on academic freedomThe tribunal concluded that summary dismissal was not a proportionate response. 

The tribunal commented that: “The University as an academic institution, ought to be prepared to face and to weather criticism and reputational damage which flows from the exercise by its academics of their rights to speak and think freely and lawfully on areas within or connected to their research and expertise.” It concluded that dismissing Dr Miller had not materially protected the university’s reputation and that a less intrusive means than dismissal could have been used to achieve its aims 

Dr Miller’s dismissal and the rejection of his appeal was therefore found to have been direct belief discrimination. 

Was the dismissal unfair? 

The tribunal concluded that the dismissal was also unfair as the decision was tainted by discrimination and was outside the band of reasonable responses of a reasonable employer. A lesser disciplinary sanction would have been appropriate in the circumstances. 

The tribunal determined that Dr Miller’s award should be reduced by 50% to reflect the fact that he had contributed to his own dismissal, commenting that he should have pursued his concerns via internal processes, rather than engaging in aggressive public discourse against students and student societies which had complained about him. The tribunal also decided that the award should be further reduced because of the likelihood that Dr Miller would have been fairly dismissed two months later following his further public statements   

Was the dismissal wrongful? 

Dr Miller was also found to have been wrongfully dismissed as his actions did not damage the relationship of trust and confidence between him and the university such that they could dismiss him without notice. 

Learning points for employers 

The employer in this case was clearly faced with a very difficult situation and was under considerable external pressure in making its decision to dismiss. Readers should be aware that the tribunal’s decision may be appealed and that this case sets no precedent for future cases. However, employers should note from this case the importance of: 

  • taking into account evidence gathered in an internal investigation in a disciplinary decision; 
  • evidencing reputational damage where this is a key reason for dismissal; 
  • where conduct may be a manifestation of a protected belief ensuring that:  
    • thought is given to whether it is justifiable to object to the conduct;   
    • the sanction is imposed in pursuit of a legitimate aim;  
    • the sanction is proportionate; and that there is no less intrusive means of achieving the aim. 
Employers are advised to seek legal advice where disciplinary allegations may relate to a protected characteristic under the Equality Act, being particularly alert to potential legal protections for some beliefs which may be controversial, shocking and offensive to others. 
 

How Wrigleys can help 

The employment team at Wrigleys is expert in helping education, charities and third sector clients with complex employee relations, including allegations of discrimination and unfair dismissal. 

We can also help by reviewing your contracts and policies so that expectations are clearly set, problems are dealt with promptly and fairly, and tribunal claims less likely to arise. 

Importantly, we work within the wider charities, social economy and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ wider governance and regulatory obligations, and their relationships with key stakeholders and funders impact on employment processes and decisions. Our wider team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk. 

 
 

If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any of the employment team on 0113 244 6100.

You can also keep up to date by following Wrigleys employment team on X.

The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.

 
 
 
 
 
 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
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