Background
Dr David Miller, a professor of political sociology at the University of Bristol, was summarily dismissed for stated gross misconduct in October 2021. The decision followed public comments he made in February 2021 about Zionism, Israel, Jewish students, and Jewish student organizations. His internal appeal was unsuccessful.
An Employment Tribunal held that Miller’s beliefs that political Zionism is inherently racist, imperialistic, and colonial, and therefore ought to be opposed, qualified as protected philosophical beliefs under the Equality Act 2010. It found that his dismissal and the rejection of his internal appeal were direct discrimination because his expression of those beliefs materially formed part of the University’s reason for dismissing him. It also held that the dismissal was unfair and wrongful, while finding his comments about students and student groups blameworthy.
The Tribunal reduced both the basic and compensatory unfair-dismissal awards by 50% for contributory fault. It also found a 30% chance that Miller would have been lawfully dismissed by October 2023 because of social-media posts made in August 2023. The University appealed the adverse liability findings and remedy conclusions, and Miller cross-appealed the rejection of separate direct-discrimination and harassment claims and the contributory-fault reduction.
The Court’s Holding
The Employment Appeal Tribunal upheld the Tribunal’s liability conclusions. It held that the Tribunal was entitled to find that Miller’s protected expression of his beliefs was a material part of the University’s composite reason for dismissing him. Because that factor was non-objectionable expression of protected belief, the dismissal constituted direct discrimination. Alternatively, the Tribunal had properly concluded that dismissal was disproportionate because a warning and clearer guidance offered a less intrusive means of pursuing the University’s legitimate aims.
The EAT also upheld the findings of unfair and wrongful dismissal and the 50% reductions to the unfair-dismissal awards for contributory fault. Miller’s comments directed at students and student societies were separable from the protected beliefs he had pleaded, and the Tribunal permissibly regarded those comments as blameworthy conduct contributing to his dismissal. The EAT dismissed Miller’s cross-appeal concerning the misconduct finding, alleged harassment by the investigating officer, and contributory fault.
The University succeeded only on the assessment that there was a 30% chance Miller would have been lawfully dismissed by October 2023. The Tribunal had not adequately explained why the August 2023 posts could have produced a lawful dismissal or why the probability was 30%. The EAT set aside that part of the judgment and remitted the Polkey/Abbey National issue to the same Tribunal for redetermination at the remedy hearing; compensation for the discrimination claims had not yet been decided and was not appealable.
Key Takeaways
- An employer directly discriminates when an employee’s non-objectionable expression of a protected philosophical belief materially forms part of the reason for dismissal.
- Protection for a belief did not immunize Miller’s separate comments about students and student organizations from being treated as blameworthy conduct or from supporting a contributory-fault reduction.
- A percentage reduction based on the chance of a later lawful dismissal must be supported by evidence and adequate reasoning about both the counterfactual dismissal and the probability assigned to it.
Why It Matters
The decision reinforces that universities must distinguish between an academic’s protected belief and objectionable features of the manner in which that person speaks or acts. Even where legitimate concerns exist about students, institutional reputation, or safety, dismissal may be discriminatory and unfair if protected expression materially drives the decision or if a less severe response would adequately address those concerns.
At the same time, the judgment confirms that protected-belief and free-expression rights do not prevent tribunals from identifying separable misconduct and reducing an unfair-dismissal award for conduct that materially contributed to dismissal. It also requires careful, evidence-based reasoning before compensation is discounted for the possibility of a later lawful termination.