Down Arrow

Hina Belitz published in Law360 discussing the key takeaways from the recent Miller judgment

26 April 2024

Our partner Hina Belitz has been published in Law360 discussing what the recent Miller judgment, which held that views relating to Israel-Palestine can be protected under the Equality Act 2010, means for employers and employees. We have reproduced the article below; alternatively, you can read it at Law360

 

Job loss arising from views expressed on Israel and Palestine - critical takeaways from Miller v University of Bristol

Discrimination on the grounds of religious or philosophical belief is a highly dynamic area, as the courts determine whether an increasingly diverse range of political beliefs should be protected under the Equality Act 2010. But rarely do we see the operation of this law in such a powerful way as in the Employment Tribunal’s decision on Feb. 5 in David Miller v. University of Bristol. The court, 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 was therefore discriminated against when he was dismissed on this ground.

The recent escalation in the conflict between Israel and Palestine has polarised public opinion, furthered by the ICJ’s ruling on January 22nd 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, organisations such as CAGE International have observed an increasing number of employees facing  disciplinary action, suspension, and dismissal in connection with the expression of political views, in support of Palestine in particular.[1]

These dismissals and detriments cut across the USA and Europe, as well as the UK.

In the UK, Jess Phillips and seven other shadow ministers resigned or were fired  on November 14th 2023 after being told they could not keep their position if they voted against their party’s Israel policy. The Conservative MP Paul Bristow was dismissed from his position as ministerial aide on October 30th 2023 for calling for a ceasefire, and Andy McDonald, Labour MP, was suspended on the same day after he used the words “between the river and the sea” at a rally to demonstrate his backing of Palestine.

Prominent examples abroad, some of which have been high-profile and have informed public debate in the UK, include media sackings, including Marc Lamont Hill, a media studies professor who worked with CNN, was fired after he called for a ‘free Palestine from the river to the sea’.[2]

In the US, Susan Sarandon was dismissed as a client by her talent agency after saying that "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]  Also in the US, Davis Polk rescinded job offers to three law students in leadership positions in Harvard and Columbia University groups who expressed support for the Palestinian people and blamed Israel for the October 7th attack.[4]

In the context of UK 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 with certainty given the courts will inevitably lag behind social developments and 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 Miller 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 unravelling relevant facts to take into account and that the specific beliefs about Zionism are capable of protection.

The facts

The claimant in this case was an academic at the University of Bristol who joined in 2018 as a Professor of Political Sociology. His research focus was on concentrations of power and how they can be democratised, and his particular interests included Islamophobia and the Zionist movement. The case centered on his statement 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’.

During the claimant’s time at the University there were several incidents which sparked conflict between the claimant and various groups including the Bristol Jewish Society and the Union of Jewish Students. In 2019, the claimant delivered a lecture in which he was critical of Zionism, arguing that it was a driving factor behind Islamophobia. These groups lodged complaints arguing that the professor was anti-Semitic and should be dismissed, but an independent barrister-led investigation commissioned by the University did not find any of his comments to be anti-Semitic.

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 anti-Semitic.

Several years later, the claimant spoke at a free speech event about his concerns surrounding restrictions on the ability to criticise Israel, after which he became the subject of another widespread campaign against him. Criticisms were posted on Twitter, referring to Miller as an ‘utterly vile antisemite’ (paragraph 93 of the judgment).   A second barrister-led independent investigation again found him not to have made any anti-Semitic remarks. Despite this, a separate internal investigation at the University found the claimant to have committed gross conduct 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 a gross misconduct are dismissed without notice or payment in lieu.

The decision

Professor 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 Grainger criteria set out by the EAT in the judgment in Grainger plc v Nicholson, handed down on November 3rd, 2009. 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 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.

The ET found that the claimant’s belief met these criteria. It also found that the reason for the dismissal was the claimant’s beliefs, as opposed to an unacceptable manifestation of those beliefs, that his behaviour did not amount to gross misconduct, and that it was open to the University to take less intrusive disciplinary measures.

The claimant’s dismissal was therefore unfair and discriminatory.

Key takeaways from the case

This is the first case to find that beliefs relating to the Israel-Palestine 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 the Employment Tribunal to be increasingly willing to recognise and protect a wide range of political beliefs, and the Miller 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 enquiry 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 Miller case that the claimant’s beliefs were not found to be anti-Semitic. If an anti-Zionist’s belief involves anti-Semitism, 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 Miller case, the court concluded that there was a 30 per cent chance that the claimant 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 Miller decision, employers should be mindful that an employee expressing views relating to Israel-Palestine 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 EAT’s judgment in Maya Forstater v CGD Europe and Others , handed down on June 10th 2021, referenced in Miller, 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, anti-Semitism cannot and should not be permitted under the guise of freedom of belief, but, equally, the Miller case has highlighted that employers cannot assume that criticism of Israel or support of Palestine amounts to anti-Semitism, 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, and the risk that they will be vicariously liable for the discriminatory behaviour of one employee towards another should they not deal with any such behaviour appropriately. Personality clashes are also a risk.

All employers should have clear anti-discrimination policies, policies on social media use, and policies on behaviour in the workplace or while acting in a work capacity. The Miller case is somewhat of an unusual one in that an academic’s role inherently involves speaking publicly on matters which 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 organisations will not want to be seen taking sides on controversial issues, and it is possible to have policies that limit employees engaging 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 recognise 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 emphasise 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 amongst themselves in the workplace, policies should again emphasise 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 Israel-Palestine, it should be dealt with fairly, proportionately and in a non-discriminatory manner, having regard 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 Israel-Palestine 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 and specialist employment lawyer at Excello Law.

 

[1] https://www.cage.ngo/articles/new-report-exposes-scale-of-palestine-repression-at-uk-schools-and-workplaces

[2] https://www.theguardian.com/media/2018/nov/29/cnn-marc-lamont-hill-israel

[3] https://www.theguardian.com/film/2023/nov/21/susan-sarandon-pro-palestinian-remarks-uta-dropped

[4] https://www.theguardian.com/us-news/2023/oct/18/student-palestine-letter-harvard-columbia-us-law-firm-jobs-revoked

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