Philosophical beliefs in the workplace - University's appeal dismissed by the Employment Appeal Tribunal (EAT)

This week, the EAT dismissed an appeal by the University of Bristol against a finding made by an Employment Tribunal in 2024 that former employee Dr Miller's anti-Zionist beliefs qualified as a protected philosophical belief under the Equality Act 2010 and that his summary dismissal was an act of direct discrimination as well as being unfair contrary to the Employment Rights Act 1996.

The EAT's decision is the latest in a line of judgments which tackle the difficult issues of protected beliefs (especially beliefs relating to religion, politics or philosophy), freedom of expression, and academic freedom. The latter is particularly significant for Higher Education Institutions and their employees, evidenced by a number of recent high-profile cases and OfS intervention. Other education establishments, including FE Colleges, are also impacted by wider issues around freedom of speech and the extent to which employees can express their own views both within and outside of the workplace. 

Often employers face difficult decisions when the manifestation of an employee's beliefs gives rise to criticism from colleagues, students or other third parties.  Employers have a duty to prevent harassment of employees, and also to ensure a safe working environment, but at the same time they also have responsibilities when it comes to allowing employees to exercise their rights to freedom of expression, and to avoid discriminatory treatment of individuals who may express or manifest a protected belief. In this case, Dr Miller's anti-Zionist views were held to be protected beliefs by both the ET and the EAT, applying the five-step Grainger test;

(i) The belief must be genuinely held.

(ii) It must be a belief and not, an opinion or viewpoint based on the present state of information available. 

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. 

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance. 

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

As this case shows, proportionality is key. In Miller, the Tribunal found that dismissal of the claimant was an act of direct discrimination because the sanction of dismissal was a disproportionate means of pursuing the employer’s legitimate aim. It was disproportionate because the employer did not give Dr Miller the chance to respond to a warning in relation to conduct that did not – on the Tribunal’s analysis – justify immediate dismissal. 

The EAT judgment is also an important reminder of the interplay between treatment that is found to be discriminatory and the fairness of a dismissal based on the actions that led to such treatment. On this point, the EAT stated “We accept the submission for the appellant that not every act of discrimination by an employer will necessarily amount to a repudiatory breach of contract… There may, however, be cases – this being one – where a decision on proportionality in the context of a discriminatory dismissal will assist to a significant extent in answering the “band of reasonable responses” question under section 98 ERA. ”