Dr David Miller v University of Bristol: a useful reminder of protected beliefs

March 2024

Can you dismiss an employee for having anti-Zionist views, or views you think are offensive?

In the recent case of Dr David Miller v University of Bristol, the Employment Tribunal found that an academic’s anti-Zionist beliefs (which many may feel to be offensive) qualified as a protected philosophical belief under the Equality Act 2010 and that the decision to dismiss him for expressing these views amounted to unfair dismissal and unlawful discrimination.

What happened?

Dr Miller's belief was that political Zionism is inherently racist, imperialistic, and colonial, and that political Zionism therefore ought to be opposed. He defined Zionism as an ideology which holds that a state for Jewish people ought to be established and maintained in the territory that formerly comprised the British Mandate of Palestine.

Numerous complaints were made regarding Dr Miller’s expression of these views, with an initial investigation finding no case to answer. Dr Miller then made further statements and articles which led to a second investigation and hearing which found that while his comments would be “offensive to many”, they were not discriminatory. Despite this, Dr Miller was found to have breached the University’s policies including its ‘Acceptable Behaviours at Work’ policy, which included obligations to treat colleagues and students with respect, and he was dismissed for gross misconduct. It was found that he had inappropriately singled out students for criticism.

What does the law say?

Under the Equality Act 2010, it is unlawful to treat someone unfavourably for expressing their religious or philosophical beliefs. In line with cases like Forstater, surprising and even offensive beliefs have been shown to be capable of protection, provided they meet the 5 key tests set out under the Grainger case (see here for further information).

This does not mean that employers can’t intervene if someone is expressing views which are causing issues in the workplace. Even if the belief is protected, an employer can take disciplinary action because of the way their religion or belief is expressed, provided doing so is necessary to achieve a legitimate aim and the employer acts proportionately. For example, if an employee expresses their belief in a way that harasses others, an employer can intervene.

Was Dr Miller's belief protected?

The Tribunal held that each of the five Grainger tests were met, including the fact that Dr Miller’s belief had played a significant part in his life for many years. On the final part of the test, Dr Miller made it clear that his opposition to Zionism, ‘is not opposition to the idea of Jewish self-determination or of a preponderantly Jewish state existing in the world, but to the exclusive realisation of Jewish rights to self-determination within a land that is home to a very substantial non-Jewish population’. He was also clear that he was not supportive of violence as a means of opposing Zionism. It was determined that this belief was worthy of respect in a democratic society.

Did the University act lawfully?

While the Tribunal found that the University’s aims in interfering with Dr Miller’s belief had been legitimate (i.e., to protect its reputation, its interests and to protect the rights of others to hold religious beliefs and to not suffer harassment or hostility), it found that his summary dismissal was not proportionate and that a disciplinary sanction short of dismissal would have been appropriate in the circumstances.

It is worth noting that the Tribunal found that comments he made after his dismissal were discriminatory, and therefore reduced his compensation by 30% to reflect the likelihood that he may have been dismissed in any event for those later comments.

Tips for employers:

This case serves as a good reminder to all employers to bear the following in mind:

Act proportionately: You may want to pause before taking action and deciding inappropriate conduct amounts to gross misconduct. In this case, while the Tribunal agreed Dr Miller acted inappropriately, it did not agree that his actions amounted to gross misconduct. The outcome may well have been different if the university had found his comments amounted to discrimination.

Tolerance: A wide range of beliefs are protected by law. Provided they don’t cross the line into harassing or discriminating against others, individuals are expected to be tolerant of others’ beliefs, even if they conflict with our own. Employers may want to consider updating their policies to reflect the importance of tolerance. Training can also play an important role here.

Consider taking advice: These cases will be fact specific and you may want to take advice before taking action. The Tribunal may well have come to a different conclusion in different circumstances. Dr Miller was an academic whose work was political and controversial at times, and he was well known for his views on Zionism. The outcome may have been different if these statements had been expressed by a senior leader in a company.