David Miller wins tribunal case against the University of Bristol

An employment tribunal has ruled that a sociology professor who was dismissed by the University of Bristol was unfairly and wrongfully dismissed.

Notably, it found that David Miler’s “anti-Zionist” beliefs qualified as a “philosophical belief and a protected characteristic” under the Equality Act 2010.

And it found that Miller was subject to “direct discrimination” from the university over its decision to sack him – and to reject a subsequent appeal from him against that decision.

Escalation

David Miller was a professor of Political Sociology, employed by the University of Bristol in 2018. He claimed that for a significant chunk of his time at the university, he was targeted by a concerted effort from groups and individuals opposed to his anti-Zionist views.

That campaign, he argued, was not only aimed at ousting him from his position – but was also met with a lack of support and investigation from his employer. That situation escalated to a point where he faced what he described as discriminatory and unfair misconduct proceedings – leading to his dismissal.

That complaint was anchored in an argument that his anti-Zionist stance constituted a protected philosophical belief under the Equality Act 2010, alleging discrimination on these grounds. In response, the university firmly denied – asserting that Miller’s termination was a direct result of gross misconduct linked to specific statements and comments made in February 2021. It also challenged the notion that his expressed beliefs merited protection under the Equality Act.

His beliefs as summarised in the case are worth examining. His view is that Zionism – defined as the ideology advocating for a Jewish state in the territory of the former British Mandate of Palestine – is inherently racist, imperialist, and colonial, and thus offensive to human dignity.

That stance, says Miller, is informed by his academic research on settler-colonial conflicts, particularly those in Northern Ireland, Palestine, South Africa, and Algeria – viewing those struggles through a lens that opposes Zionism as a form of settler-colonialism and ethno-nationalism aimed at establishing Jewish hegemony in historic Palestine. His contention is that his stance is not an opposition to Jews or Judaism, but one that is specifically against the political ideology and practices he associates with Zionism.

Things started to get difficult when in early 2019, Miller delivered a lecture on Islamophobia, arguing that the Zionist movement was one of five pillars driving Islamophobia in the UK – which generated a complaint from the Community Security Trust:

CST has received complaints from two Jewish undergraduate students at the University of Bristol about a lecture given by David Miller, a Professor of Sociology, on 18 February 2019 in which CST and other UK Jewish organisations were apparently blamed by him for causing Islamophobia. In the view of CST, the complaint raises serious diversity and student welfare issues together with very real concerns about the academic approach of Professor Miller. For what we trust are obvious reasons, the Jewish students wish to remain anonymous.

With no formal process for handling complaints of that sort from third parties, a complaint then came in from the then President of the Bristol Jewish Society (the JSoc) and the President of the Union of Jewish Students (UJS), who was a former student of the university (and former president of the Bristol JSoc):

We are deeply concerned that a lecturer is able to use his position of influence in a prestigious academic institution in order to spread conspiracy theories and propagate myths for which he has no evidence.

The university’s initial response highlighted its Freedom of Speech policy and suggested a review of the lecture content for clarity and accuracy – but things quickly escalated. Complaints came in from Jewish student organisations, which called for disciplinary action against Miller for what they argued was antisemitic discourse and problematic statements made prior to his employment at the university.

Pressure

Initially, the central complaint on lecture content was dismissed – with the university both stressing the importance of free speech and questioning the applicability and precision of the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. It found no evidence of Miller expressing hostility towards Jews as a group, and so concluded that claims of antisemitism were not founded.

But that wasn’t the end of it. John Mann, Chair of the All-Party Parliamentary Group against Antisemitism, expressed major concerns over antisemitism at the university in a letter shared with MPs, the CST, and the Union of Jewish Students – criticising the handling of the complaints and specifically questioning a decision not to adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism in resolving the complaint.

Following an appeal, the university tasked a KC to investigate the initial complaint, encompassing allegations including the misuse of university resources, failure to disclose outside interests, and potential violations of speech standards in light of the university eventually adopting the IHRA definition.

That investigation concluded there was no formal case to answer, found that Miller’s actions did not constitute misconduct or violate the Equality Act 2010, and addressed the complexities of defining antisemitism – the KC noting the IHRA definition’s controversial nature and its compatibility with legal obligations.

Things took a turn in early 2021 when Miller took part in an online event entitled “Building the Campaign for Free Speech.” Miller critiqued Zionist movements and linked Jewish student groups in the UK to political agendas aligned with Israel – and was promptly met with accusations on social media labelling Miller as an antisemite.

That triggered a second investigation to determine whether Miller’s language crossed the boundaries of acceptable speech. This time while the KC concluded that the statements in contention did not constitute unacceptable speech (while acknowledging that certain statements could be offensive particularly to those affiliated with Jewish student organisations), the university concluded that the comments could potentially breach university conduct policies focusing on confidentiality, the impact on university relationships, endangerment of health or safety, and adherence to acceptable behaviours and freedom of speech policies.

The subsequent disciplinary hearing concluded that Miller had breached several university policies, amounting to acts of gross misconduct – considering the balance between academic freedom and the responsibility to avoid offensive or harmful statements towards students and student societies. And an appeal panel upheld that decision, dismissing grounds related to unlawful interference with free speech, errors in student impact analysis, inconsistent treatment, policy misapplication, and failure to consider mitigation.

Central findings

On the question of whether Miller’s beliefs were “protected philosophical beliefs”, there’s another detailed set of legal arguments that deserve a thorough read – but for here, the upshot is that the tribunal found they were genuinely held, played a significant role in his life, based on his understanding and research into Zionism, informed by his academic expertise and were coherent and cogent.

It also crucially concluded that Miller’s opposition to Zionism, as he defined it, did not inherently deny the right to Jewish self-determination but opposed the realisation of such rights in a manner that displaced or disenfranchised non-Jewish populations in the region.

With that established, there’s then many pages of detailed legal analysis on the decision to dismiss – the upshot of which is that while the tribunal recognised the university’s concerns over the impact of Miller’s expressions on its reputation and the welfare of its students and staff as legitimate, it nevertheless concluded that his dismissal was due to the manifestation of his beliefs – constituting direct discrimination and an unfair dismissal under employment law.

As such, it deemed the university’s decision to dismiss as disproportionate – suggesting that a less severe disciplinary action could and should have been pursued without compromising the university’s objectives.

Then the rejection of his appeal – conducted as a review rather than a re-hearing of the original decision – meant that the panel largely endorsed the original rationale for dismissal without significant changes, and so the tribunal deemed it an act of direct discrimination, matching the tribunal’s earlier findings regarding the initial dismissal.

Other issues

There were a couple of other bits to note. As has happened in some student cases we’ve seen, Miller had a run at arguing that the disciplinary process itself created an intimidating, hostile, or offensive work environment – but the tribunal found the process to be reasonable and diligent, adhered to university policies, and was a legitimate and proportionate response to the comments Miller made. It was the decision that was the problem.

He also alleged harassment on the basis of the university’s decision to allow a student complaint to proceed to a Complaints Review Panel, citing procedural problems and suggesting that it had been influenced by external factors. The tribunal concluded that the automatic nature of the procedure to escalate the complaint to the CRP stage was not related to the claimant’s anti-Zionist beliefs – and so that harassment claim fell.

Later moving the complaint from the CRP into a disciplinary context was also raised by Miller as harassment – but this time, because it introduced the possibility of sanctions, because the IHRA definition was applied retrospectively, because there were major concerns about fairness and consistency and because of a lack of evidence from decision-makers about their rationale, the tribunal found that the referral created an intimidating, hostile, degrading, humiliating, or offensive environment for Miller – hence harassment under the Equality Act.

Miller also argued that the university failed to enforce its student Disciplinary Regulations and Procedure against students leading the campaign against him – but the tribunal found that the university’s limited comments and actions were aimed at reassuring involved parties.

He also argued direct discrimination based on comments the university made to the media – where it explicitly stated that it did not endorse Miller’s comments, outlined its procedure for dealing with complaints and stressed its adoption of the IHRA definition. But the tribunal found that the university’s responses were attempts to manage fallout and maintain a balanced approach – an attempt to distance itself from his remarks while addressing the concerns of the Jewish student community.

Response

The Union of Jewish Students (UJS) said it was disappointed by the decision, which could set a “dangerous precedent” about what can be said on campus about Jewish students and Jewish Societies – arguing that this would “ultimately make Jewish students less safe.” It also noted the ruling said Miller contributed to his own dismissal, labelling him “culpable and blameworthy.”

A CST spokesperson told Jewish News:

We are extremely concerned about what the employment tribunal considers is acceptable for a university professor to say publicly about Jewish students and Jewish societies who raised legitimate complaints about him. Despite finding in Miller’s favour, the tribunal still said that he was equally to blame for his own dismissal. Since then he has continued to express his obnoxious opinions on Iranian State TV, which is exactly where he belongs.

The Campaign Against Antisemitism argued that the failure to adopt IHRA and apply it to Miller’s teaching was the problem:

Until this case, the exact reasons for Prof.David Miller’s sacking by the university were kept from the public. It is now clear that, despite its adoption of the IHRA definition, Bristol’s failure to recognise that Prof.Miller’s comments constituted antisemitism, as well as its failure to consider some of his most egregious comments, opened the way for today’s judgment.

Legal firm Rahman Lowe’s partner Zillur Rahman, who represented Miller, said:

This is a landmark case and marks a pivotal moment in the history of our country for those who believe in upholding the rights of Palestinians….[The ruling will be] welcomed by many who at present are facing persecution in their workplaces for speaking out against the crimes of the Israeli state, and the genocide taking place in Gaza.

Miller himself said he was proud to establish that anti-Zionist views qualify as a protected belief, adding:

This was the most important reason for taking the case and I hope it will become a touchstone precedent in all the future battles that we face with the racist and genocidal ideology of Zionism and the movement to which it is attached.

The university will be pleased with the findings on handling fall out and triggering processes – but did say it was disappointed with the outcome, adding:

We recognise that these matters have caused deep concern for many, and that members of our community hold very different views from one another. We would, therefore, encourage everyone to respond in a responsible and sensitive way in the current climate.

That’s similar to the OU’s initial response to the Phoenix case – whether we get a wider review in a few days time as happened there remains to be seen.

Comparisons and conflict

The case raises almost endless questions – not least about the practical applicability of the IHRA definition. It certainly puts OfS Director for Free Speech and Academic Freedom Arif Ahmed’s assertion last year that it can accommodate “robust support for free speech and academic freedom” into sharp focus.

And the comparisons with the Phoenix v the OU case are hard to avoid. That also found that a set of opinions deemed controversial by some deserved protection from harassment in law – and also involved “activism” from others in the university aimed at securing a dismissal.

As with Phoenix v the OU, it’s an employment tribunal judgement and so doesn’t set legal precedents in and of itself, although also as with Phoenix v the OU, will also be studied closely for its implications. It also concerns itself principally with employment law rather than the intersections of freedom of speech and “balancing duties”, which OfS will end up involving itself in once its complaints scheme gets going.

There are also important differences between this and the Phoenix/OU case – in the nature of the claim that was being brought, the detail in the judgement, the fact that Miller was directly dismissed rather than dismissed constructively, and the subsequent response.

But the key and symbolic difference is the way in which the political response has manifested.

Polarisation

The tendency by Conservatives has been to argue that Jewish students are not being sufficiently protected from harassment in relation to staff expression. Hence in 2021, the now universities minister and then Education Select Committee chair Robert Halfon sided with the activists against the academic – attacking the university for not protecting Jewish Students over what he said was the university’s “failure to act” over the conduct of Miller:

Jewish students are clearly not welcomed or safe or valued – and sadly history teaches us where this ends….the university management cares nothing, sees nothing and does nothing about this…. they appear to regard Jewish students as an inconvenience and a nuisance and refuse to take serious action.

Meanwhile commentary on gender critical beliefs and the staff that hold them has tended to set aside the arguments of students and staff calling for “protection” from the expression of those beliefs, suggesting in these cases that it has been the staff themselves who have not been protected, and siding with the academic against the activists. Hence during the passage of the Free Speech Bill, the now Deputy Chair of the Conservatives Lee Anderson said:

We know that free speech is being shut down in universities in this country. Professor Jo Phoenix was due to give a talk at Essex University about placing transgender women in women’s prisons. Students threatened to barricade the hall. They complained that Ms Phoenix was a transphobe who was likely to engage in hate speech…. the university told Ms Phoenix and the event was postponed.

That is not, for the avoidance of doubt, to imply or suggest that those with anti-Zionist beliefs are to be categorised alongside those with gender critical views, any more than it is to suggest that many Jewish people, alongside those sympathetic to Israel end of the middle east conflict, are to be automatically categorised alongside those advocating for trans rights. Both cases in the detail seem less about “sides” on issues, and more about the behaviours and actions that might count as harassment.

But the charge of hypocrisy swirls uncomfortably around these cases. On one side is the idea that progressive anti-racists are frequently guilty of hypocrisy towards Jews by not viewing them as worthy of similar protection as other minorities. On the other the charge is that legally held views are treated differently based on whether the present government agrees with them. The tribunal may have settled Miller’s case over his dismissal – but those wider arguments will run and run.