The judgment in the case of Miller v University of Bristol has been published at a time where the issues it deals with are of a particularly sensitive nature given the ongoing conflict in Gaza. It illustrates the challenge for employers in regulating employees' political speech while upholding the right to freedom of speech. This is something that is a particular issue in the field of academia.
The background of the case
The claimant had been dismissed from his role as a Professor of Political Sociology at Bristol University in 2021. In 2019, calls had been made for his removal from his position on the basis of alleged antisemitic views when lecturing to students. Following an independent investigation carried out by a KC (“the 2019 Investigation”), it was found that none of the comments made were antisemitic and that they fell within the freedom of expression protections contained in the European Convention of Human Rights (“ECHR”). Article 9 of the ECHR protects the freedom of thought, conscience, and religion, as well as the freedom to manifest a religion or belief. Article 10 of the ECHR further protects the freedom to hold opinions and the freedom of expression. Nonetheless, as these are qualified rights, these may be lawfully interfered with, if it is prescribed by law, proportionate and necessary to pursue a legitimate aim. The events of 2019 received a considerable amount of media coverage and, during 2020, the claimant continued to be branded as antisemitic by various parties, including students. The claimant sought the publication of the investigation report but, in March 2021, the University stated that they needed to consider a range of issues before the publication of the report could be considered.
A month earlier, in February 2021, the claimant delivered another lecture where he described the “potentially deleterious effects on free speech” of restrictions surrounding the right to criticise the state of Israel. The lecture also referenced the claimant’s own experiences of being attacked for his views by the Bristol Jewish Society and the Union of Jewish Students. After giving the lecture, the claimant spoke to journalists about the issue. He also had a number of articles published that included further comments, some of which were seen as attacking student organisations. The statements made by the claimant resulted in the University receiving significant correspondence, some seeking the claimant’s dismissal but a roughly equal number supporting him.
An investigation into the claimant’s alleged conduct in respect of the statements and comments made by him during this time began (“the Internal Investigation”). Separately a second independent investigation, carried out by the same KC who was instructed in the 2019 Investigation, commenced to investigate whether the statements and comments made by the claimant exceeded the boundaries of acceptable speech (“the 2021 Investigation”). Although the 2021 investigation concluded that there was no case to answer, the internal investigation found that the statements made by the claimant breached a number of the University's rules and procedures and amounted to gross misconduct. The claimant was dismissed and his appeal against the dismissal was rejected.
The Tribunal's decision
The claimant brought claims for unfair dismissal and discrimination based on his anti-Zionist beliefs. An employment tribunal found that the claimant's belief qualified as a protected philosophical belief, and that the claimant had been directly discriminated against because of those beliefs in relation to the University's decision to dismiss him and the rejection of his appeal. Although the University had been pursuing aims of protecting its reputation and interests, as well as protecting the rights of others to hold religious beliefs and associate with the University without fear of harassment, intimidation or hostility, the dismissal was not a proportionate response. It was the severest possible response and could send out a "chilling" message to academics more widely, which would be to the detriment of society as a whole. Considering that the University's investigations had found the statements made by the claimant were not antisemitic, he had not incited violence and had not posed any threat to the health and safety of any person, a proportionate response would have been to issue a disciplinary sanction short of dismissal.
The tribunal also found that the claimant had been unfairly dismissed, the dismissal being tainted with discrimination and in any event outside the range of reasonable responses. Other claims for indirect discrimination and harassment were either withdrawn, out of time or unsuccessful. However, the employment tribunal thought it would be appropriate to reduce both the basic and compensatory awards for unfair dismissal by 50% because the dismissal was caused or contributed to by the claimant's own actions. It also found that there was a 30% chance that the claimant would have been fairly dismissed within two months of comments he had made in August 2023 (after his actual dismissal) on social media.
Conclusion
The sensitivity of the facts in this case, combined with the tribunal's judgement in favour of the claimant, while still critical of some of the comments he made, show how difficult it is for employers to get the balance right when dealing with cases of this nature. For universities in England and Wales, there is soon to be a statutory duty on them (and other higher education providers) to take reasonably practicable steps to secure the freedom of speech within the law for staff, members, students and visiting speakers in the form of the Higher Education (Freedom of Speech) Act 2023, which although it received Royal Assent in May 2023, is not yet in full force. This will increase protections for both freedom of speech and academic freedom. However, this must be within the law, and universities will still be required to carry out a balancing exercise ensuring one person's freedom of expression does not impinge on the rights of another.
