Key takeaways
Anti-Zionist beliefs can be protected
Protected philosophical beliefs include anti-Zionist views meeting Grainger criteria.
Expression matters more than belief
Employers must distinguish beliefs from how those beliefs are expressed.
Dismissal must be proportionate
Sanctions require evidence and proportionate justification beyond reputational concerns.
The Employment Appeal Tribunal (EAT) has upheld a tribunal's finding that a university professor's anti-Zionist beliefs constituted a protected philosophical belief under the Equality Act 2010 and that his dismissal was discriminatory and unfair. The decision reinforces the importance of distinguishing between an employee's protected beliefs and the way those beliefs are expressed, particularly where employers are responding to external complaints, reputational concerns or highly polarised political issues.
Legal background
Direct discrimination because of religion or philosophical belief is unlawful. For a philosophical belief to be protected, it must meet certain criteria (known as the Grainger criteria):
it must be genuinely held
not simply be an opinion or viewpoint based on information currently available
concern a weighty and substantial aspect of human life and behaviour
attain a certain level of cogency, seriousness, cohesion and importance
be worthy of respect in a democratic society and
compatible with human dignity and must not conflict with the fundamental rights of others.
The threshold for excluding a belief from protection is high. In Forstater, the EAT confirmed that only beliefs involving the gravest forms of hatred and intolerance, will fall outside the protection of the Equality Act. In this case, an employment tribunal considered whether a university professor’s anti-Zionist beliefs qualified for protection as a philosophical belief.
Factual background
In September 2018, M joined Bristol University as a Professor of Political Sociology. M is an academic with over 20 years’ experience, who specialises in, amongst other things, Zionism. His anti-Zionist views were well-known to the University when it appointed him to teach related modules on its degree courses.
In 2019 and again in 2021, the University received complaints about comments made by M concerning Zionism and Israel. Independent investigations concluded that his comments did not amount to antisemitism. Nevertheless, following a subsequent internal process, the University dismissed M for gross misconduct in October 2021. His internal appeal was unsuccessful and he brought claims for discrimination, unfair dismissal and wrongful dismissal.
In August 2023, which post-dated his dismissal, M posted comments on social media to the effect that ‘Jews are not discriminated against’, ‘are overrepresented…in positions of cultural, economic and political power’ and are ‘in a position to discriminate against actually marginalised groups’. He subsequently sought to justify his position by seeking to draw a distinction between discrimination and hate crime.
ET decision
The employment tribunal held that M had a philosophical belief, which met the necessary Grainger/Forstater criteria for protection. This was M’s beliefs that ‘Zionism…is inherently racist, imperialist, and colonial’ and that it ‘necessarily calls for the displacement and disenfranchisement of non-Jews in favour of Jews, and it is therefore ideologically bound to lead to the practices of apartheid, ethnic cleansing and genocide in pursuit of territorial control and expansion…’
Having found that M’s beliefs were protected, the tribunal went on to apply the EAT's guidance in Higgs v Farmor's School [2023] EAT 89, and held that the actions which caused M's dismissal had a sufficiently close and direct nexus to his protected philosophical belief such that they were properly to be understood as a manifestation of that belief.
The two central aims relied on by the University – the protection of the University’s reputation and interests and the protection of the rights of others to hold religious beliefs and to associate with the University ‘undaunted by harassment, intimidation or hostility’ – were both legitimate. However, M’s summary dismissal amounted to a disproportionate interference with his human rights to freedom of thought, conscience and religion and freedom of expression. Dismissal was not only the severest sanction available to the employer, but it could have a ‘chilling’ effect on academics more widely, which would be to the detriment of society. While the tribunal found that there was ‘fault’ in what M did, it noted that ‘even on the respondent’s analysis what [M] said was accepted as lawful, was not antisemitic and did not incite violence and did not pose any threat to any person’s health or safety.’ As M’s dismissal was connected to the manifestation of his protected philosophical belief, it was directly discriminatory, unfair and wrongful.
The tribunal concluded that both the basic and compensatory awards should be reduced by 50% to reflect M’s contributory conduct, and that there was a 30% chance that M would have been fairly dismissed two months after the comments he made in August 2023.
EAT decision
The University appealed the tribunal’s decision and argued, amongst other things, that compensation should have been reduced by 100%. In its recent judgment, the EAT has held that the tribunal was correct to find that M’s dismissal for anti-Zionist beliefs was discriminatory and unfair. However, it held that the tribunal had not sufficiently explained the basis for its finding that there was a 30% chance M would, in any event, have been dismissed by October 2023 because of later social media posts. That issue alone was remitted back to the same tribunal for further consideration.
Employers dealing with controversial political, religious or philosophical views should:
distinguish carefully between the underlying belief and the way it is expressed
avoid assuming that complaints from colleagues, service users, customers or third parties justify disciplinary action
identify clearly whether any proposed disciplinary action relates to misconduct, reputational risk, breach of policy or unlawful conduct, rather than to the belief itself
ensure that restrictions on expression are proportionate and supported by evidence
recognise that views which many individuals find offensive, shocking or objectionable may nevertheless remain protected under the Equality Act 2010 and
document carefully why less severe sanctions would be insufficient where dismissal is being considered.
The decision does not mean that all comments made in support of anti-Zionist beliefs will be protected. As with other religion and belief cases, employers may still take action in relation to unlawful harassment, discriminatory conduct, threats, intimidation or other misconduct. The key question will often be whether the action is being taken because of the protected belief itself or because of the particular way it has manifested.
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