As the courts determine whether an increasingly diverse range of political beliefs should be protected under the Equality Act 2010, discrimination on the grounds of religious or philosophical belief is a highly dynamic area of law. But rarely do we see the operation of this law in such a powerful way as in an employment tribunal’s decision on Feb. 5 in Miller v. University of Bristol.
Bristol Employment Tribunal, for the first time, confirmed that anti-Zionist beliefs can fall within the scope of a protected philosophical belief under the Equality Act 2010, and that the claimant, David Miller, was therefore discriminated against when he was dismissed on this ground.
The recent escalation in the Israeli-Palestinian conflict has polarized public opinion, furthered by the International Court of Justice’s ruling on Jan. 26 that Israel must refrain from committing acts of genocide, noting that some of the actions already allegedly taken by Israel could fall within the provisions of the Genocide Convention.
In parallel, in a December 2023 report, CAGE International observed an increasing number of U.K. employees facing disciplinary action, suspension and dismissal in connection with expressions of political views, particularly in support of Palestine.[1] These dismissals and detriments cut across the U.S. and Europe, as well as the U.K.
In the U.K., Jess Phillips and seven other shadow ministers resigned or were fired on Nov. 15, 2023, after being told they could not keep their positions if they voted against their party’s Israel policy.
The Conservative MP Paul Bristow was dismissed from his position as ministerial aide on Oct. 30, 2023, for calling for a ceasefire in Gaza. And Andy McDonald, Labour MP, was suspended on the same day after he used the controversial phrase “between the river and the sea” at a rally to demonstrate his backing of Palestine.
Prominent examples abroad, some of which were high-profile and have informed public debate in the U.K., include CNN’s 2018 decision to fire Marc Lamont Hill, a media studies professor, who worked with the network and was fired after he called for a “free Palestine from the river to the sea.”[2] Also in the U.S., in November 2023, Susan Sarandon was dismissed as a client by her talent agency after making remarks at a pro-Palestine rally, including: “There are a lot of people afraid of being Jewish at this time and are getting a taste of what it feels like to be a Muslim in this country.”[3]
Further, in October 2023, Davis Polk & Wardwell LLP rescinded job offers to three law students in leadership positions in Harvard University and Columbia University groups after the students expressed support for the Palestinian people and blamed Israel for Hamas’ Oct. 7th attack.
In the context of U.K. law, whether an employer can lawfully take disciplinary action against an employee for expressing their political views is a complex issue, and the first question to be asked is whether the employee’s political view qualifies for protection under the Equality Act 2010. This question can be a difficult one to answer, and the courts will inevitably lag behind social developments.
It will take time before a case is brought by someone holding a particular belief. It is in this context that we turn to the recent University of Bristol case, which highlights the key considerations for a belief to qualify for protection under the Equality Act. It also addresses some of the confusion that can inevitably arise in unraveling relevant facts to take into account, and confirms that the specific beliefs about Zionism can be protected.
The Facts
In the University of Bristol case, Miller was an academic at the university. He joined in 2018 as a professor of political sociology. His research focus was on concentrations of power and how they can be democratized, and his particular interests included Islamophobia and the Zionist movement. The case centered on his belief that “Zionism, [defined] 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” and thereby “offensive to human dignity.”
During Miller’s time at the university, there were several incidents that sparked conflict between Miller and various groups, including the Bristol Jewish Society and the Union of Jewish Students. For example, in 2019, Miller delivered a lecture in which he was critical of Zionism, arguing that it was a driving factor behind Islamophobia. The aforementioned groups lodged complaints arguing that the professor was antisemitic and should be dismissed, but an independent barrister-led investigation commissioned by the university did not find any of his comments to be antisemitic.
There was press interest with criticism levied against Bristol University and, by extension, Miller. He was therefore concerned to ensure his name was cleared following the barrister-led investigation confirming his comments were not antisemitic. In 2021, Miller spoke at a free speech event about his concerns surrounding restrictions on the ability to criticize Israel, after which he was scrutinized on social media. Criticisms were posted on X, formerly known as Twitter, referring to Miller as an “utterly vile antisemite.”[4]
A second barrister-led independent investigation again found that he did not make any antisemitic remarks. Despite this, a separate internal investigation at the university found that Miller committed gross misconduct on the basis of his comments about certain students and student societies, and other comments made in response to the public criticism he received. He was dismissed without notice in October 2021. For context, gross misconduct is the most serious kind of misconduct that can take place and entitles an employer to allege the relationship has been broken. Those dismissed for gross misconduct are dismissed without notice or payment in lieu.
The Decision
Miller successfully claimed that he had been subject to discrimination and unfair dismissal, as his beliefs were found to fall within the scope of a protected religion or belief under the Equality Act 2010. Whether a belief can be protected is determined by whether it meets the criteria set out by the Employment Appeal Tribunal’s 2009 judgment in Grainger PLC v. Nicholson. These require a belief to:
– Be genuinely held;
– Not be an opinion or viewpoint based on the present state of information available;
– Be a belief as to a weighty and substantial aspect of human life and behavior;
– Attain a certain level of cogency, seriousness, cohesion and importance; and
– Be worthy of respect in a democratic society, not incompatible with human dignity or the fundamental rights of others.
The employment tribunal found that Miller’s beliefs met these criteria. It also found that the reason for the dismissal was Miller’s beliefs — as opposed to an unacceptable manifestation of those beliefs — that his behavior did not amount to gross misconduct, and that it was open to the university to take less intrusive disciplinary measures. Miller’s dismissal was therefore unfair and discriminatory.
Key Takeaways From the Case
This is the first case to find that beliefs relating to the Israeli-Palestinian conflict can qualify for protection under equality law. While this is a decision at first instance, and therefore does not create legal precedent, the tendency seems to be for employment tribunals to be increasingly willing to recognize and protect a wide range of political beliefs, and the University of Bristol case will likely be an important point of reference in future litigation.
The key point in any belief discrimination case is that whether a belief qualifies for protection will be a highly fact-sensitive inquiry based on the application of the Grainger criteria. An employee who labels themselves an anti-Zionist will not automatically succeed in a discrimination claim simply because other anti-Zionist claimants have now done so.
For example, it was important in the University of Bristol case that Miller’s beliefs were not found to be antisemitic. If an anti-Zionist’s belief involves antisemitism, it will fail to meet the “worthy of respect in a democratic society” criterion. Additionally, for an employee to be protected from discrimination, there must also be a link between the employee’s belief and the actions the employee took.
Interestingly, in the University of Bristol case, the court concluded that there was a 30% chance that Miller would have been fairly dismissed in any event following tweets he published stating that “Jews are not discriminated against” and that they are “overrepresented … in positions of cultural, economic and political power,” as these comments did not have any link to his protected belief.
Following the decision in this case, employers should be mindful that an employee expressing views relating to the Israeli-Palestinian conflict may very well fall within the remit of equality law protection, and they should take care when considering disciplinary action related to an employee’s political expressions.
In today’s highly charged political atmosphere, and as demonstrated in this case, it is all too easy to conflate lawful expressions of political beliefs, even controversial beliefs, with gross misconduct or hate speech. Many employers try to argue that an employee’s controversial belief is not worthy of respect in a democratic society, but as noted in the Employment Appeal Tribunal’s 2021 judgment in Maya Forstater v. CGD Europe and Others, which was referenced in the University of Bristol case, very few beliefs will fail this test, with this category being reserved for beliefs akin to totalitarianism or Nazism.
Of key importance, as noted above, antisemitism cannot and should not be permitted under the guise of freedom of belief. But, equally, the University of Bristol case has highlighted that employers cannot assume that criticism of Israel or support of Palestine amounts to antisemitism, and subjecting an employee to dismissal or detriments as a result could lead to a successful discrimination claim against the employer.
Employers should also be aware of the potential for conflict arising between employees with differing political views. There is a risk that the employer will be vicariously liable for the discriminatory behavior of one employee toward another if the employer does not deal with the behavior appropriately. Personality clashes are also a risk. All employers should have clear policies on anti-discrimination, social media use, and behavior in the workplace or while acting in a work capacity.
The University of Bristol case is somewhat of an unusual one in that an academic’s role inherently involves speaking publicly on matters that may be politically controversial. In most other employment contexts, however, it is not generally expected that employees will, as part of their job, speak publicly on political issues. Many organizations will not want to be seen taking sides on controversial issues, and it is possible to have policies that limit employee engagement in political activities while dealing with customers or clients.
Where employees are engaging in political activities outside of work, however, the position is very different. Employers must recognize the fundamental importance of freedom of belief and expression. It will generally only be appropriate to discipline an employee for their out-of-work activities where they legitimately bring the employer into disrepute.
It should be noted that public pressure alone will not be sufficient to justify disciplinary action. Any social media policy should emphasize the need for respect and civility and ensure that employees do not hold themselves out as representing the employer when speaking in a personal capacity. Where employees are having political discussions among themselves in the workplace, policies should again emphasize the need for respect and civility.
Disciplinary and other policies should be belief-neutral, and if a disciplinary matter arises, for example as a result of a disagreement about the Israeli-Palestinian conflict, it should be dealt with fairly, proportionately and in a nondiscriminatory manner. Regard should be given to the nature of the conduct itself and which protected characteristics might be engaged. If considering a disciplinary concern, always assess whether a lesser sanction than dismissal would be appropriate first.
This area of law is inevitably complex, and employers should carefully consider any disciplinary actions against an employee on the grounds of their political activities or expressions. While we are likely to see more cases involving beliefs relating to the Israeli-Palestinian conflict, which should clarify the position, this is a fast-paced area and novel beliefs or conflicts will continue to arise and cause difficulties.
Hina Belitz is a partner at Excello Law. This article was written for Law 360 on the 24th March 2024. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
