Dismissal influenced by expression of protected belief was discriminatory

Background

In University of Bristol v Miller, the claimant was employed as a professor and was summarily dismissed for gross misconduct following public comments he made about Zionism, including comments directed at students and student societies.

The claimant brought claims including direct philosophical belief discrimination, belief-related harassment, unfair dismissal and wrongful dismissal.

The Tribunal found that the claimant's anti-Zionist beliefs were protected philosophical beliefs and that the expression of those beliefs was a material factor in the decision to dismiss. It held that the dismissal was directly discriminatory, unfair and wrongful. However, it reduced his unfair dismissal awards by 50% for contributory fault, finding that his comments concerning students and student societies were blameworthy and had contributed to his dismissal.

The University appealed on nine grounds and the claimant cross-appealed on three grounds.

EAT decision

The Employment Appeal Tribunal (EAT) largely upheld the Tribunal's decision, with one aspect of the remedy assessment remitted for further consideration. The claimant's cross-appeal was dismissed.

The EAT upheld the Tribunal's conclusion that the claimant's anti-Zionist beliefs qualified for protection as philosophical beliefs under the Equality Act 2010.

Crucially, the EAT upheld the finding that there was a composite reason for dismissal. It was not only the claimant's comments about students and student groups that prompted the dismissal; his expression of the protected beliefs themselves was also a material factor. The former were regarded as inappropriate and blameworthy, but were distinct from the expression of his protected beliefs. As the non-objectionable expression of those beliefs was itself a material part of the reason for dismissal, the dismissal amounted to direct discrimination and could not be justified on proportionality grounds.

The University's appeal succeeded on one limited issue concerning remedy. The Tribunal had assessed a 30% chance that, had the claimant remained employed, social media posts he made in August 2023 would have resulted in a lawful dismissal in October 2023. The EAT held that the basis for that assessment had not been adequately explained and remitted the issue for reconsideration.

Learning points for employers

This decision highlights the importance of clearly identifying what is objectionable about an employee's conduct where protected beliefs are engaged. Relevant considerations may include whether the expression is unlawful or discriminatory, incites violence or hatred, or presents a risk to others. Employers should distinguish those concerns from disagreement with, or objection to, the protected belief itself.

Where there is genuinely objectionable conduct alongside protected expression, disciplinary action should be clearly focused on that conduct. If the non-objectionable expression of the protected belief itself materially influences a dismissal, the employer may be unable to justify the decision on proportionality grounds.

For more information or advice, please get in touch with Matt Verrier in our Employment team.