What does the recent ET case on anti-Zionist beliefs mean for employers and employees?

The recent case of Miller v University of Bristol has confirmed that beliefs relating to Israel-Palestine, and in particular anti-Zionist beliefs, are capable of being protected under discrimination law.

The case

The claimant joined the university in 2018 as a Professor of Political Sociology, focusing on concentrations of power and how they can be democratised, with interests including Islamophobia and the Zionist movement. His views were well-known when he was hired.

In February 2019, the claimant delivered a lecture in which he was critical of Zionism. Following this, various groups argued that he was anti-Semitic and should be dismissed from his role. An independent investigation found that none of his comments were anti-Semitic. Several years later, the claimant at a free speech event expressed concern that the ability to criticise Israel was being unduly limited with deleterious effects on free speech. He became the subject of an aggressive campaign against him, again alleging anti-Semitism. A further independent investigation found his comments were not anti-Semitic, but a separate internal investigation found the claimant to have committed gross misconduct, and he was dismissed without notice in October 2021.

Professor Miller successfully claimed that he had been subject to discrimination and unfair dismissal, among other claims, on the basis that his beliefs fell within the scope of ‘religion or belief’ under the Equality Act 2010.

In concise terms, the particular belief he holds is that ‘Zionism, defined as an ideology 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’. He views Zionism as a form of racism as it necessarily calls for the displacement and disenfranchisement of non-Jews in favour of Jews. He is not opposed to Jews or Judaism and accepts that it would be possible for a non-racist state of Israel to exist.

The ET evaluated this belief in relation to the Grainger criteria, which 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 behaviour.
• Attain a certain level of cogency, seriousness, cohesion and importance.
• Be worthy of respect in a democratic society, not incompatible with human dignity or the fundamental rights of others.

After finding that the claimant’s belief met these criteria and thereby qualified as protected under the Equality Act 2010, the ET determined that the reason for dismissal was the claimant’s beliefs, rather than an unacceptable manifestation of those beliefs, and that it was open to the university to take less intrusive measures to discipline the claimant. The ET also determined that the claimant’s actions did not amount to gross misconduct and there was not enough attention paid to the possibility of a lesser sanction. As such, his dismissal was discriminatory and unfair.

What can we learn from this case?

While this is a decision at first instance, it is powerful in suggesting that beliefs relating to Israel-Palestine are capable of being protected under discrimination law. The key point is that whether a belief is protected is ultimately highly fact sensitive. The claimant in this case was questioned extensively on his beliefs to assess whether they met the Grainger criteria, and there is no guarantee that another person’s pro-Palestine or anti-Israel views will be protected simply because of the ET’s finding in this case. The Miller case does form part of a continuing trend we see in the Employment Tribunal, however, in which there seems to be increasing willingness to recognise a wide range of political beliefs as protected.

In light of this case, employers should be particularly careful about the potential to discriminate against employees on the basis of their views about Israel-Palestine. We are becoming concerned about the number of instances in which employees are being disciplined or dismissed for expressing pro-Palestine views in particular, and this case highlights the danger in conflating lawful expressions of beliefs, even controversial beliefs, with gross misconduct or hate speech. As noted in the Forstater case, very few beliefs will fail to be protected on the grounds that they are unworthy of respect in a democratic society, with this category being reserved for beliefs akin to totalitarianism or Nazism. In this context, while anti-Semitism cannot and should not be permitted under the guise of freedom of belief, employers should not assume that criticism of Israel or support of Palestine amounts to anti-Semitism.

Interestingly, the court in Miller concluded that there was a 30 per cent chance that the claimant would have been fairly dismissed in any event following tweets in which he stated that ‘Jews are not discriminated against’ and that they are ‘overrepresented…in positions of cultural, economic and political power’. The court found that these comments did not have any link to his protected beliefs. This demonstrates the central importance of context in this area, something which should guide all employers’ decisions when it comes to disciplining employees for political expressions.

All employers should have clear anti-discrimination policies as well as policies on social media use and appropriate speech while at work or acting in a work capacity. The Miller case is somewhat of an exception to the usual workplace context, something that was discussed by the ET in their decision, which notes that a university ‘ought to be prepared to face and 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’. In most other workplaces it is not generally expected that employees will speak publicly and in a work capacity on political issues, and it is possible for employers to institute policies that limit such speech.

When employees are speaking among themselves, or are politically active outside of work, however, employers should have regard to the fundamental importance of freedom of belief and expression and be guided by belief-neutral policies which emphasise the importance of respect and not bringing the employer into disrepute.

If you would like more information about this area in general, you can read our previous post on this area here.

If you believe you have been discriminated against for your political views, get in touch with us at the details below. Hina has over 20 years of experience in discrimination law and will continue to be at the forefront of all legal developments in this area.