David Miller’s supporters have greeted the Employment Appeal Tribunal’s judgment in his case against the University of Bristol with predictable jubilation. Miller has defeated almost, but not quite, all of the University’s appeal. However, this is neither the sweeping victory they claim nor a new licence to target Jewish students under the banner of “antizionism”.
The case arose from a long and bitter dispute. Miller, then a sociology professor at Bristol, had attracted controversy over his teaching and public statements about Zionism. In February 2021, he described “Jewish student groups” as political lobby groups overseen by the Union of Jewish Students, which he called an “Israel lobby group”.
Bristol appointed a senior barrister to consider whether those statements had exceeded the boundaries of acceptable speech. Her report concluded that there was no formal case to answer. A subsequent disciplinary process nevertheless found that Miller’s conduct fell below the standards expected of staff, and Bristol dismissed him for gross misconduct in October 2021.
In 2024, an Employment Tribunal held that his dismissal and the rejection of his internal appeal were acts of direct discrimination because of philosophical belief. It also found his dismissal unfair and wrongful. Bristol appealed. Miller brought a cross-appeal against the findings that aspects of his conduct amounted to misconduct, that the investigator had not harassed him, and that his unfair-dismissal compensation should be reduced. The EAT has now rejected all but part of one ground of Bristol’s appeal, and every ground of Miller’s cross-appeal.
The legal starting point is less alarming than the headlines suggest. Under the Equality Act, a philosophical belief is protected only if it satisfies the five Grainger criteria. It must be genuinely held; be a belief rather than an opinion based on presently available information; concern a weighty aspect of human life; possess sufficient cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and consistent with the fundamental rights of others.
The courts have said that these threshold requirements should not be set too high. The law protects people from discrimination because of qualifying beliefs. It does not certify those beliefs as true, attractive or morally sound.
Miller framed the content of his “belief” narrowly. He said that “political Zionism”, defined as the ideology that a Jewish state should be established and maintained in the former territory of the British Mandate of Palestine, is inherently racist, imperialist and colonial and should therefore be opposed. The original Tribunal found that this particular formulation met the Grainger test. The EAT found no legal error in that conclusion.
The question whether Miller’s “true beliefs” were materially different from that formulation was not before the Tribunal. Bristol had expressly disavowed any intention to advance such a case. It could not use his later material on appeal to litigate a different one.
As a footnote, protection is not reserved for one side of this argument. There is no obvious reason in principle why a genuinely held, serious and coherent belief in Jewish national self-determination could not also qualify for protection.
Importantly, the judgment does not establish that “antizionism” is automatically protected whenever someone invokes that term. A future claimant must establish the precise content and character of their own belief against the Grainger criteria. Still less does it follow that everything Miller has said, or may say, is protected conduct.
That distinction between belief and conduct runs through the judgment. The EAT upheld the finding that two material factors contributed to Miller’s dismissal: his expression of his protected belief and his public comments about students and student groups. The latter were not manifestations of the particular protected belief upon which he relied. As the Tribunal observed, Miller could have articulated his views about Zionism without referring to students or student societies.
Those statements were found to be culpable and blameworthy. The Tribunal recognised the significant power imbalance between a professor and students, held that it was inappropriate for professors to aim aggressive public discourse at them, and found that Miller’s conduct had caused Bristol reputational harm. That is why his cross-appeal failed and why his basic and compensatory awards for unfair dismissal remain reduced by 50 per cent. Compensation for discrimination has yet to be decided.
Why, then, did Bristol lose? In part, because it moved directly to dismissal when a lesser disciplinary sanction was available. More fundamentally, the University fought the case it had chosen. It expressly disavowed any suggestion that Miller’s beliefs differed from the narrow formulation identified before the hearing. It also confirmed that it would not allege that Miller was antisemitic and that he had not been dismissed for expressing antisemitic views or breaching the Equality Act.
Having made those choices, Bristol could not then transform the appeal into a trial of Miller’s “true beliefs” or rely on later material to advance a different case. An appeal identifies errors of law. It is not an opportunity to try out arguments overlooked the first time. Indeed, the EAT described Bristol’s extensive attack on the Tribunal’s proportionality assessment as an attempt to retry that issue.
One question will return to the Employment Tribunal. The original Tribunal found a 30 per cent chance that Miller would have been fairly and non-discriminatorily dismissed by October 2023 following further tweets posted that August. The EAT held that it had not adequately explained either the basis for such a dismissal or the percentage selected. That issue will be reconsidered at the remedy hearing. Miller’s final compensation therefore remains unresolved.
None of this makes “antizionism” a legal incantation that magically turns abuse into protected speech. In Husain v Solicitors Regulation Authority last year, the High Court upheld the striking-off of a solicitor whose political tweets included calling a Jewish journalist a “Zionist pig”. The court recognised that many of the tweets concerned political matters attracting heightened protection under Article 10. But that protection did not confer immunity in relation to expression which the disciplinary tribunal and the High Court found antisemitic.
The lesson for universities is practical. Protect unpopular beliefs. Distinguish them from the manner in which they are expressed. Respond proportionately to actual misconduct. Bristol failed to do that.
Miller has won an appeal battle. He has not secured a right to target Jewish students, made “antizionism” immune from scrutiny, or persuaded the Tribunal that his conduct was blameless.
The victory parade can be kept quite short.
David Toube is General Counsel at the Jewish Leadership Council
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