Anti-Zionist beliefs and the Equality Act 2010

Rebecca Denvers considers what employers can learn from a case which found that anti-Zionist beliefs are protected under the Equality Act 2010.

In Miller v University of Bristol, a tribunal held that an academic’s anti-Zionist views were a “protected belief” under the Equality Act 2010 and his dismissal for expressing those protected beliefs was too severe and therefore unfair and discriminatory.

What are Dr Miller’s beliefs?

Dr Miller was employed as a professor of political sociology. His academic work had been both political and controversial.

Dr Miller believes Zionism to be “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”. It is his view that this is “inherently racist, imperialist and colonial” and “offensive to human dignity” and he opposes it on this basis.

He was clear that his anti-Zionist beliefs were not opposition to or antipathy towards Jews or Judaism. 

Complaints

Dr Miller’s academic views were the subject of a series of complaints:

• In February 2019, he gave a lecture during which he theorised that Zionism was a contributing factor to Islamophobia. Students and Jewish student groups complained to the university that Dr Miller’s views were, in their view, antisemitic. 
• Two years later in, February 2021, he made a series of further comments about Israel and Zionism including his views about Jewish student groups who had made complaints against him who he described as “being used as political pawns by a violent, racist foreign regime engaged in ethnic cleansing”.

The university appointed an independent barrister to investigate the content of his comments. After investigation, she concluded that, whilst Dr Miller’s views could be seen as harsh or “offensive to many”, they were not antisemitic. 

Separately, the university launched its own internal investigation into the February 2021 comments to determine whether these had breached its internal policies (e.g. Acceptable Behaviour at Work/Equality and Diversity). It found that he had done so. 

Dr Miller was invited to a disciplinary hearing. The university decided that, whilst freedom of speech and academic freedom are extremely important at the university, he had participated in “aggressive discourse” and sought to convert others to that cause (proselytise) and/or provoke a public reaction, rather than engaging in a constructive dialogue or debate. The university dismissed him. 

Dr Miller claimed that his anti-Zionist beliefs were protected and that his dismissal for expressing such beliefs was unfair and amounted to direct discrimination.

Law

Under the Equality Act 2010, “belief” (religious belief, philosophical belief, or a lack of belief) is a protected characteristic.

Philosophical beliefs are assessed against the five “Grainger criteria” (Granger plc v Nicholson). One key criterion is that the belief must be “worthy of respect in a democratic society”.

Forstater v CGD Europe arguably widened the scope of this limb. The EAT in that case stated that only beliefs akin to Nazism or totalitarianism (i.e. those involving a very grave violation of the rights of others tantamount to the destruction of those rights) would not be protected. Beliefs capable of protection might sometimes be offensive, shocking or disturbing to some.

The courts and tribunals also have to consider the European Convention on Human Rights (ECHR). In this context, freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10) are particularly relevant.

Workers have an absolute right to hold a protected belief but don’t have the same absolute right to manifest that belief in the workplace. An employer can discipline or dismiss a worker for manifesting a belief but only where it can justify its approach.  

The tribunal’s decision

The tribunal held that:

1. Dr Miller’s anti-Zionist beliefs were protected philosophical beliefs under the Equality Act 2010

The tribunal made clear that many would disagree with Dr Miller and find his views offensive. However, it noted that he did not support violence as a means of opposing Zionism or oppose the idea of Jewish self-determination or the existence of a Jewish state. 

The tribunal accepted that his views did not advocate violence or hatred in the gravest form to be akin to Nazism/totalitarianism. As such, Dr Miller’s belief was worthy of respect in a democratic society.  As per Forstater, this decision makes it very clear “very few beliefs” will fall at this hurdle.

2. Direct discrimination

The university argued that Dr Miller did not have an absolute right to manifest his beliefs and dismissing him was a proportionate response to applying its legitimate aims (i.e. no discrimination). It said those aims were necessary to balance the rights of others (e.g. its students) and to protect its reputation. 

The tribunal accepted these were legitimate aims but said the dismissal had been disproportionate (and therefore discriminatory). A lesser sanction could have been applied to achieve these aims. 

3. Unfair dismissal

Dr Miller’s actions were not gross misconduct and the university had failed to consider a lesser sanction. As such, his dismissal was also unfair.

After his dismissal, Dr Miller made further comments on social media in August 2023. He said that “Jews are not discriminated against”, are “overrepresented” and that “Judeophobia barely exists these days”. The tribunal concluded that these comments were of a different nature to his earlier comments and that there was a 30% chance he would have been dismissed fairly for making them. This finding will also reduce his compensation. 

Tips for employers

The facts of this case arose before the current Israel/Palestinian conflict in Gaza.  Emotions are running high and we’re seeing disagreements about the war being debated on social media and spilling out into the workplace. 

Unless employers have a policy which prevents staff from discussing contentious issues such as politics or religion at work (which would be unusual and difficult to justify), they need to make sure that they don’t treat staff aligning themselves with one side of the debate more harshly than the other – unless any opinions shared are racist or antisemitic and/or genuinely cause your organisation reputational harm. 

As was pointed out by the tribunal, Zionism or anti-Zionism has no universal definition and can mean different things to different people. [Broadly speaking, Zionism refers to "the movement to create a Jewish state in the Middle East roughly corresponding to the historical land of Israel, and thus support for the modern state of Israel. Anti-Zionism opposes that” (BBC)]. Others define anti-Zionism as criticism of the policies of Israel specifically in respect of the Palestine occupation. Some people argue that some anti-Zionist views are antisemitic [antisemitism can be defined as a “hostility and prejudice directed against Jewish people (Oxford English Dictionary)]. Strong opposing views in this area were at the heart of the issues behind this case.

It was relevant to the tribunal’s conclusions that Dr Miller’s own anti-Zionist views did not support violence towards Jews and did not oppose the idea of a Jewish state entirely or oppose Jewish self-determination. It was also relevant that the tribunal distinguished his later August 2023 comments which occurred after his dismissal (and which would likely fail to be protected and would likely be discriminatory). 

When navigating this (or indeed any) highly charged subject, employers should be guided by the current principles set out in case law and remember that, whilst there is a wide scope for protection of philosophical beliefs (to maintain freedom of speech/expression), there is no protection for beliefs that espouse violence and hatred towards others. 

Here are some things to consider: 

• This case is another reminder that employees are entitled to hold and, to an extent, express philosophical beliefs that are controversial – even where those views offend, shock and disturb others and/or don’t align with your EDI values.
• The extent to which employers can take disciplinary action against employees for manifesting beliefs they find offensive at work will require balancing the rights of the employee with the employer’s own objectives and will depend on the circumstances. Employers should consider any rule/policy the employee has breached and why the rule is in place. Is this objective important enough to justify limiting the employee’s rights? Is there a less intrusive way of achieving the same objective? A key takeaway from this case was that the sanction applied was too severe.
• Dr Miller’s comments took place at work and in the context of academic debate, where free speech is particularly important. It may be that in a more corporate setting, a different (legitimate) business aim may justify a more severe approach. 
• Last year, the EAT set out useful guidance for employers when carrying out this careful balancing act (Higgs v Farmor’s School - read our blog here). Employers have to consider factors such as what the employee said, the tone used, whether this represents reputational risk, whether those views could impact vulnerable service users or clients (and more). 
• It is sensible to have policies in place which set out the standards of behaviour you expect your staff to follow, but it's important not to be too restrictive about what they can say, or do, in their own time, particularly where their comments or profile don't reference you as their employer. It's also worth evaluating your approach to disagreement. Organisations that expect and welcome dissenting views are likely make better decisions and be mentally healthy places to work. They provide an environment where employees are able to speak up, whether they're sharing ideas, asking questions, expressing concerns or acknowledging mistakes. These environments provide 'psychological safety' and allow staff to bring their whole self to work. 

Rebecca Denvers is a Practice Development Lawyer at Irwin Mitchell.