Anti-Zionism as a protected belief: Miller

Background

In Dr David Miller v University of Bristol [2024] ET 1400780/2022, the claimant was appointed Professor of Political Sociology at the University from 1 September 2018. In 2019 there were complaints about his conduct, including what was said to be his use of antisemitic language. The Community Security Trust charity said that a lecture he had given had been a “false, vile, anti-Semitic slur”. As part of the internal complaints procedure the University appointed an independent barrister to investigate; the overall conclusion of the resulting report, delivered on 4 December 2020, was that there was no formal case to answer in connection with any of the matters investigated.

In February 2021, Dr Miller took part in an event called “Building the Campaign for Free Speech”, at which he spoke of being publicly criticised for his views on Palestine and Israel. The University subsequently received a significant volume of correspondence calling for it to take urgent disciplinary action, and after further disciplinary proceedings, he was dismissed for gross misconduct In October 2021.

Dr Miller believed, then and now, that

“Zionism, which he defines as an ideology that asserts that a state for Jewish people ought to be established and maintained in the territory that formerly comprised the British Mandate of Palestine, is inherently racist, imperialist, and colonial. He also considers Zionism to be offensive to human dignity on that basis, and he therefore opposes it” [25].

Further, he asserted that his anti-Zionism was a fixed belief and not amenable to change; however, “he was clear in his evidence that his anti-Zionism is not opposition to or antipathy towards Jews or Judaism” [30].

The arguments

The beliefs on which he relied were that

“(1) political Zionism (which the claimant defines as an ideology which holds that a state for Jewish people ought to be established and maintained in the territory that formerly comprised the British Mandate of Palestine) is inherently racist, imperialistic and colonial, and;

(2) political Zionism ought therefore to be opposed” [209].

The University argued that Dr Miller’s belief in Anti-Zionism did not satisfy the requirements of s.10 Equality Act 2010 at the time of the alleged contraventions because:

“i. The belief was an opinion based on research. As set out by Elias P [at 45] in McClintock v Department of Constitutional Affairs [2008] IRLR 29  it is not enough ‘to have an opinion based on some real or perceived logic or based on information or lack of information available’.

ii. The belief did not serve as a touchstone to his life: the Claimant has provided no basis on which the Employment Tribunal could conclude that the pleaded belief is a touchstone to his life.

iii. The belief is in various respects incoherent: among other things, points are taken as to what is meant by ‘the British mandate of Palestine’ and the assertion that Zionism is ‘inherently’ racist.

iv. The claimant’s particular belief is incompatible with the rights of others and/or unworthy of respect in a democratic society. It is said that the objective in ‘opposing Zionism’ to destroy the rights of self-determination for Jewish people who would wish to uphold the continuation of a non-racist Israel is irreconcilable with the basic precepts of international law. It is also said that the claimant has, and had at the material times, an indifference, at best, to violent means of ‘opposing Zionism’.” [212].

The judgment

The Tribunal noted that the University had

“confirmed at the last preliminary hearing that its position was that nothing the claimant said or did was antisemitic or in contravention of the Equality Act. We also remind ourselves that while those in opposition to the claimant’s views could logically and cogently argue that antisemitism is why Zionism exists in the first place, it is not for the tribunal to inquire into the validity of either belief” [233].

Further, Dr Miller had

“explained in his witness statement that his opposition to Zionism is not opposition to the idea of Jewish self-determination or of a preponderantly Jewish state existing in the world, but rather, as he defines it, to the exclusive realisation of Jewish rights to self-determination within a land that is home to a very substantial non-Jewish population. The claimant also made clear when cross-examined, and we accept, that he is not and was not supportive or ‘open to’ violence as a means of opposing Zionism” [237].

On the issue of belief, It concluded that the Grainger criteria had been met [238] and his claim for unfair dismissal therefore succeeded, though all other claims for harassment and direct discrimination failed. However, the Tribunal also held that:

“In relation to the unfair dismissal claim, the basic and compensatory awards are reduced by 50% in accordance with sections 122(2) and 123(6), respectively, of the Employment Rights Act 1996. This is because the claimant’s dismissal was caused or contributed to by his own actions and it is just and equitable to reduce the said awards by 50%.”

It also concluded that “There is a 30% chance that, had the claimant still been employed, the respondent would have dismissed him fairly two months after comments the claimant made on social media in August 2023”.

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For a long and thoughtful comment on the judgment, see Joshua Rozenberg, A Lawyer Writes: Tribunal respects ‘anti-Zionism’.

Cite this article as: Frank Cranmer, "Anti-Zionism as a protected belief: Miller" in Law & Religion UK, 7 February 2024, https://lawandreligionuk.com/2024/02/07/anti-zionism-as-a-protected-belief-miller/

2 thoughts on “Anti-Zionism as a protected belief: Miller

  1. I read the judgment yesterday, after a different blog post about it.

    I found the 50% contributory-fault deduction and 30% probability of hypothetical fair dismissal later a bit harsh. Regarding the latter, I note that at §475 it says, “the claimant said in his evidence that none of his post dismissal statements were affected by his freedom from the ties of employment”. I expect Miller wishes he hadn’t said that now. He could have said instead that his new-found freedom hadn’t affected his unbelief in Zionism, but might well have extended the boundaries how and where he felt safe expressing that unbelief, which was probably wouldn’t be a lie, given that it was probably merely his off-the-cuff answer to a purely hypothetical (and very clever and hostile) question (under cross-examination).

    There seems to be an idea abroad, called “academic freedom”, that the rights of academics to express themselves without adverse consequences are enhanced above and beyond the rights of us lesser mortals to do likewise. In this case, Miller’s being an academic seems to have had the opposite effect, making an academic employment into something of a double-edged sword.

    Finally, of this:
    “he asserted that his anti-Zionism was a fixed belief and not amenable to change; however, ‘he was clear in his evidence that his anti-Zionism is not opposition to or antipathy towards Jews or Judaism'”

    I think it is a pity that Miller felt pressured into asserting this, because the Lord Jesus Christ, the New Testament authors, the Apostles, and various doctors of the church have all expressed quite strong opposition to certain aspects of one form or another of Judaism. I hope the law of the land today isn’t such that Miller needed to assert this in order to make his anti-Zionism pass the Grainger test, because that might mean that Christians were no longer free to oppose any aspects of any forms of Judaism, or, by extension, any aspects of any forms of Islam, Atheism, Paganism, LGBT dogma, or any other taught and learnt body of thought and practice. I think Miller has drawn the line that shouldn’t be crossed in the wrong place. I hope the tribunal didn’t implicitly also draw that line in that place.

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