Disciplinary cases involving controversial beliefs can be particularly difficult for employers because the conduct they want to address may be closely bound up with the expression of a belief that the law protects. University of Bristol v Dr David Miller shows what can go wrong when employers fail to separate those issues carefully before deciding whether disciplinary action is justified, and how far it should go.
Dr Miller, a professor of political sociology, held the belief that political Zionism is inherently racist, imperialist and colonial, and that it ought to be opposed. In February 2021 he made public comments reflecting that view, including remarks directed at students and student societies that the university considered seriously inappropriate. He was summarily dismissed for gross misconduct that October.
The Employment Tribunal found that his anti-Zionist belief met the test for a protected philosophical belief under the Equality Act 2010. It also found that expression of that belief was a material factor in the decision to dismiss him, and that dismissal went further than the university needed to go to protect its legitimate interests. That made the dismissal both discriminatory and unfair.
Importantly, however, the Tribunal did not find that all of Dr Miller’s conduct was protected from criticism or sanction. It found that some of his comments concerning students and student societies were separately blameworthy, reduced his unfair dismissal awards by 50 per cent for contributory fault, and dismissed his complaint that the investigating officer had harassed him by recommending disciplinary proceedings. The EAT has now upheld the substantive findings.
Work out exactly what you are disciplining
That distinction, between the belief, its ordinary expression, and conduct that goes beyond expressing a view, is where employers get into difficulty. Bristol was entitled to treat some of what Dr Miller said about individual students as misconduct in its own right, and that finding survived the appeal.
Where the university came unstuck was allowing the ordinary, non-objectionable expression of his belief to also weigh in the decision to dismiss him. Once that happens, the label attached to the disciplinary charge stops mattering. Describing the wider circumstances as gross misconduct will not cure the problem if non-objectionable expression of a protected belief is itself materially influencing the decision to act.
The question an employer needs to answer, before it gets anywhere near sanction, is what it is actually responding to. Is it the belief itself? Its non-objectionable expression? Or is it separate conduct that may properly amount to misconduct.
Protection is not immunity from misconduct
That same question runs the other way too. It is just as much a mistake to assume that a protected belief makes everything said or done alongside it untouchable. Dr Miller’s own conduct resulted in a 50 per cent reduction to his unfair dismissal awards for contributory fault. Employers can investigate and can make findings of misconduct. Where the concern is genuinely separate misconduct, such as personal criticism directed at named individuals, it can be addressed as such. Where the concern is the manner in which a protected belief has been manifested, any restriction or sanction must instead be capable of objective justification. Keeping those two strands distinct explains how the Tribunal could find the dismissal discriminatory while also concluding that Dr Miller’s own blameworthy conduct justified reducing his unfair dismissal awards. The findings are not inconsistent. They answer different questions.
Test proportionality properly, and record it
Where it is not the belief itself, or its non-objectionable expression being called into question, rather the way in which a protected belief has been manifested, proportionality becomes central. The assessment of such will be highly fact-specific. Employers should look at what was said and how it was expressed, who was likely to hear or read it, its impact on the rights of others and on the organisation, whether the employee might reasonably have been understood to be speaking for the employer, any relevant imbalance of power, and the nature of the employer’s business and those it serves.
Here, the EAT also endorsed the Tribunal’s alternative proportionality analysis. It had concluded that a warning, together with clearer expectations about future public comments concerning students and student societies, could have achieved the university’s legitimate aims without moving straight to dismissal. A decision-maker should be able to say, on paper, what precise words or conduct triggered the process, whether that conduct is separable from the underlying belief, what harm the organisation was trying to prevent, what evidence supported that harm, and why a lesser response would not have been sufficient.
Write policies precise enough to be useful
None of this is easy to do from a standing start once a complaint has landed, which is why the groundwork is worth laying in advance. Where an employer relies on a contractual rule or policy to restrict an employee’s expression, that rule needs to be sufficiently precise for the employee to understand the standard expected of them and reasonably foresee the consequences of breaching it.
A policy that simply asks staff to uphold the organisation’s values or avoid reputational damage will not do much work when a genuine belief-related dispute reaches a manager’s desk. Far more useful is a policy that says something concrete about public comment, social media conduct, and how disagreements involving colleagues or service users should be raised and handled.
The question Miller leaves employers with is not simply whether an employee’s words caused offence. It is what, precisely, the organisation is objecting to, and whether the response chosen matches that conduct rather than the controversy surrounding the belief itself.
