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

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: 

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 that: Dr 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 cleansing”. Dr 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 freedom. The 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