Belief discrimination: it's not what you say, it's the way that you say it

That was what the EAT had to decide in Miller v The University of Bristol.

Facts

Dr Miller was employed by the university as a professor of sociology. He was dismissed, without notice, after three years' service for making three separate comments. 

The first was made during a public event discussing free speech, during which he said “the enemy we face here is Zionism, and the imperial policies of the Israeli state” and asked "how we can make sure that Zionism is ended”. He was accused of antisemitism and gave a statement to the Jewish Chronicle in which he referred to specific Jewish student groups as being political lobby groups that were constitutionally bound to promoting Israel. He also emailed a student who was writing an article to put on the record his view that “Zionism is and has always been a racist, violent, imperialist ideology premised on ethnic cleansing”.

The university received many complaints about his comments and launched two investigations which ran concurrently. 

The first investigation was conducted by a retired professor, and the second by an independent lawyer who was asked to determine if Mr Miller's comments had ‘exceeded the boundaries of acceptable speech’ having regard to the Equality Act 2010 and other matters. She found that Mr Miller's speech did not exceed those boundaries. However, the other investigator was concerned that Mr Miller had directed critical comments at Jewish students and Jewish student groups and recommended disciplinary action.

Mr Miller was dismissed for the way he had manifested his beliefs (he was found guilty of proselytising and trying to convert others to his cause) and because he had abused his power by singling out students and their societies. 

He brought a number of claims in the tribunal. 

Tribunal decision

His beliefs were characterised as ‘political Zionism’ which he believed was ‘inherently racist, imperialistic and colonial, and ought to be opposed’. The university did not challenge those beliefs and accepted that Mr Miller was not antisemitic, and that he didn't advocate opposing Zionism using violence.  

The tribunal found that these beliefs met the Grainger criteria and were, therefore, protected. It then considered whether the university had unlawfully discriminated against him for the way he had expressed those beliefs. It found there was a clear link between what he had said and his dismissal. 

In most direct discrimination cases, that would be the end of the matter. But belief cases are treated very differently. The courts will consider whether the way the employee expressed their beliefs was objectionable. That is considered in a human rights context and depends on whether the employer's actions (in this case dismissal) were:

1. prescribed by law - this has a wide meaning and includes internal policies 
2. pursued a legitimate aim; and
3. necessary in a democratic society - this looks at proportionality.

The university had a number of policies which regulated the standards and behaviour it expected its staff to follow including a Free Speech Code of Practice and Diversity and Inclusion policy. Dr Miller was aware of these and had been previously warned (albeit informally) that he needed to be “mindful” of the distinction between his academic research and political campaigning. 

The tribunal found that the university had a legitimate aim of protecting its reputation and the rights of others to hold religious beliefs without being harassed or intimidated but found that its approach was not proportionate because:

“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 the rights to speak and think freely and lawfully on areas without or connected to their research and expertise …  [and that] dismissing the claimant has not materially protected the university’s reputation.” 

It said that it would have been proportionate to warn Dr Miller and clearly explain to him what he, and other members of staff, could say in public about students and student societies. Accordingly it found that his dismissal amounted to direct belief discrimination, was unfair and was also wrongful because it was without notice. 

The tribunal rejected Mr Miller's arguments that the finding of misconduct was itself an act of direct discrimination. It found he could have expressed his protected views without engaging in ‘aggressive discourse’ with students and student societies.  

The university appealed against all findings of liability against it and Mr Miller cross appealed on a number of grounds.

EAT decision

The university sought to argue that Mr Miller's beliefs were not protected because they were political and, therefore, fell outside of the remit of protection under s10 Equality Act. The EAT rejected that line of argument because there is no hard line which excludes political beliefs from being protected. 

It also rejected the university's arguments that the tribunal had accepted a sanitised version of Mr Miller's beliefs and that it should have looked at his ‘real beliefs’ - which, it argued, were obvious from social media posts made in the wake of the Hamas led attacks of 7 October 2023. That was because the university had accepted that Mr Miller's beliefs were those set out in his claim and it couldn't argue otherwise now. 

The EAT then looked at whether the tribunal had applied the correct legal tests to reach its decision that Dr Miller's dismissal was unlawful.  

The tribunal found there were two material factors at play in the minds of the decision makers which led to Dr Miller's dismissal: his comments about Zionism (which it said were non-objectionable) and those directed at students and student groups which were inappropriate. Only the first comments were protected. Dr Miller had not argued his beliefs included those about student groups he considered to the “pawns” of Israel. 

The EAT said that two conclusions followed: Dr Miller had been dismissed for expressing his lawful beliefs about Zionism and that amounted to unlawful direct discrimination. But, his comments about students were not manifestations of his protected belief and the tribunal did not, therefore, need to consider whether they were justified. It went on to say if it was wrong about that, the tribunal had correctly applied the proportionality guidance and had reached a decision open to it. 

Our view

The threshold for speech that is protected as a philosophical belief is lower than many people assume. For a particular belief to be not worthy of respect in a democratic society, the views must be incompatible with human dignity and conflict with the fundamental rights of others. Only beliefs akin to Nazism or totalitarianism are excluded. A belief in antisemitism would, therefore, not be protected. 

There's no doubt that Dr Miller's views were reviled by many people both off and on campus and put its senior leaders under intense public scrutiny. The university had to devote a considerable amount of time and resources to manage this backlash. But as this case demonstrates that was not enough to justify dismissing an academic for making comments, protected as philosophical beliefs, to which ‘no objection could reasonably be taken’. 

That's partly because academics enjoy additional protections and are allowed to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without jeopardising their career prospects, having their privileges removed or being dismissed for doing so. 

The point at which objection can reasonably be taken to views expressed by an employee in other cases will depend on the precise facts including the employee's job role and the sector they work in.

A previous Court of Appeal authority approved a set of principles which provide some helpful guidance:  

1. The right to hold a belief (religious or otherwise) and express views on it are essential in a democratic society, whether or not the belief in question is popular or mainstream, and even if its expression offends others.

2. Those rights are qualified and can be restricted by law to the extent needed to protect the rights and freedoms of others (legal restrictions will include employer policies and procedures, provided they are accessible to staff and explain what could happen if they disobey the rules). An employer has to objectively justify any restrictions it imposes on its staff and, provided it can do so, it will be able to discipline staff if they express themselves inappropriately.

3. But each case has to be assessed individually. While it may be appropriate to limit what some people can say on their own accounts, that doesn't mean that everyone's rights should be limited. 

4. In all cases, an employer needs to ask itself (1) whether its rules etc are important enough to justify being limited? (2) Are the rules connected to that objective? (3) Is there a less intrusive way of achieving the same objective? And (4) whether the severity of the rules on the employee are more important than the objective.

5. To help employers weigh up those questions, they should consider what the employee has said or done, the tone used, the employee's understanding of the likely audience, whether they've made it clear that their views are personal and whether that presents a reputational risk to the organisation, whether those views could impact vulnerable service users or clients, and if there is a potential power imbalance between the employee (and their role) and those whose rights are being intruded upon.

That doesn't mean there is a one size fits all approach that can be applied in every case. The Court of Appeal said that in some cases it will not be necessary or even useful to refer to each of these. All are potentially relevant, but often the tribunal will need to focus on some and exclude others. So, employers don't need to treat these as a checklist they have to tick off.

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