Case update
The EAT considered whether a professor's anti-Zionist beliefs were protected under the Equality Act 2010
In University of Bristol v Miller, the Employment Appeal Tribunal (EAT) largely upheld an Employment Tribunal (ET) decision that a professor was unfairly dismissed because part of the reason to dismiss him was due to him simply holding a protected belief under the Equality Act 2010 (here, anti-Zionist beliefs) and/or the non-objectionable manifestation of the same.
The employer should have acted more proportionately in its response (e.g. considered a warning rather than jumping to dismissal) and should have relied solely on objectionable aspects of the professor’s conduct (which were found to be an inappropriate way to manifest his beliefs) in any disciplinary measures.
We summarise practical takeaways for employers below.
Background
Dr Miller was a Professor of Political Sociology at the University of Bristol. In February 2021, Dr Miller made public comments against Zionism (a nationalist movement advocating for the establishment of a Jewish nationhood and homeland), including in a speech at a public event, in communications to the Jewish Chronicle and directly in an email to a student. In these comments, he specifically named and criticised Jewish student groups at the University. Following disciplinary proceedings, Dr Miller was summarily dismissed on 1 October 2021 for gross misconduct.
The ET held that Dr Miller had been unfairly and wrongfully dismissed and unlawfully discriminated against because of his protected philosophical beliefs. The University appealed, arguing that:
- Dr Miller’s beliefs amounted to political opinions rather than protected philosophical beliefs under section 10 Equality Act 2010, they lacked sufficient cogency and coherence, were not worthy of respect in a democratic society, and included support for violence.
- Dr Miller was dismissed because of the objectionable manner in which he manifested his beliefs, rather than because of the beliefs themselves, and that dismissal was a proportionate means of protecting the University's reputation and the rights of its students.
- The ET should have reduced compensation by 100% for contributory fault in relation to both the unfair dismissal and discrimination claims.
- The ET erred when concluding that there was only a 30% chance that Dr Miller would have been lawfully dismissed in any event by October 2023 due to social media posts made around that time (a ‘Polkey’ reduction – which applies where there is a chance that the employee would have been fairly dismissed in any event had the employer followed a fair procedure).
EAT's decision
The EAT dismissed all grounds of appeal, except the challenge to the ET's Polkey assessment.
Dr Miller’s political beliefs were protected under section 10 Equality Act 2010
The EAT held that the ET had correctly applied all five Grainger criteria.
Dr Miller’s anti-Zionist beliefs were genuinely held, were more than mere opinions, related to a substantial aspect of human life and behaviour, were sufficiently cogent and coherent, and were worthy of respect in a democratic society.
The manifestation of Dr Miller's beliefs materially influenced the dismissal decision
The EAT held that the ET was entitled to conclude that the manifestation of Dr Miller's protected beliefs formed a material part of the University’s decision to dismiss him, alongside his comments regarding Jewish student groups.
Dismissal was not a proportionate disciplinary response
The EAT held that the ET had correctly applied the Higgs test for objective justification, together with the proportionality principles set out in another relevant case, Bank Mellat.
Although an employer may restrict the objectionable manifestation of a protected belief where objectively justified (Higgs), the ET was entitled to conclude that dismissal was a disproportionate response in the circumstances and that a warning would have been sufficient.
Wrongful dismissal was correctly established
The EAT upheld the ET's finding that Dr Miller's conduct did not amount to a repudiatory breach of contract capable of justifying summary dismissal. Accordingly, the ET had correctly concluded that he had been wrongfully dismissed.
Contributory fault reduction upheld
The EAT rejected the University's argument that compensation should have been reduced by 100%. It held that the ET had been entitled to apply a 50% reduction for contributory fault, reflecting the blameworthy nature of Dr Miller's comments about students and student groups.
The ET failed to provide adequate reasons for its Polkey assessment
The University's appeal succeeded on one issue only. The EAT held that the ET had failed to provide adequate reasons for its conclusion that there was a 30% chance that Dr Miller would, in any event, have been lawfully dismissed by October 2023. That aspect of the award was therefore sent back to the ET for reconsideration.
EAT decision: key points
Political beliefs are protected under section 10 Equality Act 2010
Political beliefs that meet the Grainger criteria are protected under section 10 Equality Act 2010.
In relation to anti-Zionism, the EAT upheld that Dr Miller's opposition to Zionism was worthy of respect in a democratic society, finding that his beliefs were “not supportive of violence” and were “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”.
The Page distinction: when can employers restrict manifestation of protected beliefs?
The key question in the case was whether the dismissal was “because of” Dr Miller’s protected beliefs. It turned on the distinction in Page v NHS Trust Development Authority between two categories:
(1) where the reason for adverse treatment is simply the holding or non-objectionable manifestation of a protected belief – this is direct discrimination and cannot be justified; and
(2) where the reason is an objectionable or inappropriate way in which the belief is manifested - here, the employer may justify the restriction if it meets the proportionality test in Higgs.
Critically, the EAT found that Dr Miller’s dismissal involved two separate and distinct factors operating as a composite reason:
(a) The expression of his protected anti-Zionist beliefs, and
(b) His separate comments directed at students and student groups.
Because a material part of the reason for dismissal was the non-objectionable expression of protected beliefs (factor (a)), the dismissal fell within the first Page category. This meant the dismissal was direct discrimination and was not capable of being justified under Higgs – regardless of whether the separate comments about students might independently have warranted some action.
However, the comments directed at students and student groups (factor (b)) were not treated as manifestations of the protected beliefs. The EAT noted it was “clearly open to [Dr Miller] to articulate his views about Zionism without reference to students and University societies.” These comments were instead treated as distinct blameworthy misconduct - separate from the protected beliefs – which justified the 50% contributory fault reduction.
Employer guidance: This case illustrates a critical principle: if any material part of the reason for dismissal was the holding of, or non-objectionable manifestation of, a protected belief, then dismissal will be discriminatory and cannot be justified – even where separate aspects of the employee’s conduct might independently have warranted action (although the latter may help for contributory fault arguments). Employers must therefore carefully isolate genuinely separable misconduct from protected belief expression before taking disciplinary action.
Contributory fault in unfair dismissal
The EAT upheld the 50% contributory fault reduction based on the ET’s finding that Dr Miller's separate comments directed at students and student groups (such as describing them as "political pawns" and linking student societies to violence, racism, and ethnic cleansing) were blameworthy and materially contributed to his dismissal.
These comments were not manifestations of Dr Miller’s protected anti-Zionist beliefs, but rather constituted "aggressive discourse" inappropriate for someone in his academic position, especially given the power differential between professor and students.
The ET held that both employer and employee were equally to blame for the dismissal, so it was just and equitable to reduce the basic and compensatory awards for unfair dismissal by 50% (applying the Hollier v. Plysu categories for contributory fault).
The EAT found no error in this approach, noting the ET had taken a broad, fact-sensitive view and that the reduction reflected the equal responsibility for the outcome.
Employer guidance: This means that, while protected beliefs and their lawful expression cannot be grounds for disciplinary action, separable misconduct (such as targeting students with aggressive or inappropriate comments) can justify disciplinary measures – or form the basis for a reduction in compensation for unfair dismissal (as in this case).
Practical implications for employers
Due process
It’s important to follow due process in disciplinary matters, taking adequate time to conduct investigations and assess findings, as well as taking time to consider appropriate and proportionate disciplinary measures.
Proportionality
Proportionality remains essential: even where misconduct is established, dismissal may be disproportionate.
The EAT upheld the finding that a warning would have been sufficient here, and that the University should have given Dr Miller the chance to modify his behaviour before moving to dismissal.
Categorise conduct
Employees are generally protected when expressing genuinely held political or philosophical beliefs, even if controversial.
Employers must therefore carefully assess whether disciplinary action is due to: (a) the belief itself or its non-objectionable manifestation (which cannot be grounds for action), or (b) genuinely separable misconduct in how the belief was expressed (which may justify action if proportionate). This distinction is critical: if the reason for action includes any material element of category (a), the action will be discriminatory regardless of category (b) conduct.
Separate types of conduct
Where conduct is genuinely separable from protected belief expression, employers may take proportionate disciplinary action.
In this case, Dr Miller’s comments targeting students (describing them as “political pawns” and linking student societies to violence and ethnic cleansing) were separable from his anti-Zionist beliefs – he could have expressed his views without directing criticism at students.
This separable misconduct justified the 50% contributory fault reduction, even though the dismissal itself was unlawful.
Disclaimer
This update should not be treated as legal advice and only provides general information on the issues discussed.
