Belief discrimination: where are we now?

The recent Employment Appeal Tribunal decision in University of Bristol v Miller is a useful reminder of how employers should deal with conduct linked to an employee’s protected religion or belief.

The key point is that employers need to separate the belief itself, the way the employee expresses it, and any genuinely objectionable conduct.

What did Higgs tell us?

In Higgs v Farmor’s School, the Court of Appeal confirmed that an employer may discriminate if it treats an employee less favourably because of something they have said or done which is closely connected to a protected belief.

This is often described as the manifestation of the belief.

An employer can still take action if the way the belief is expressed is sufficiently objectionable. But the employer’s response must be justified.

In practice, that means asking two questions:

• Is the employer trying to protect a legitimate aim? 
• Is the action being taken proportionate?

The more serious the action, particularly dismissal, the more carefully that proportionality needs to be considered.

What happened in Miller?

Dr Miller was a Professor of Political Sociology at the University of Bristol. He was dismissed after making public comments expressing anti-Zionist beliefs and strongly criticising named Jewish student groups.

The tribunal found that his particular anti-Zionist belief was protected under the Equality Act 2010.

It also found that his dismissal amounted to direct belief discrimination.

Importantly, this did not mean that everything Dr Miller had said was protected from disciplinary action. Some of his language towards named student groups went beyond expressing his protected belief and could properly be treated as misconduct.

However, his dismissal was based substantially on comments which were a manifestation of his protected belief. The University therefore had to justify restricting that expression. It could not do so because dismissal was considered disproportionate when a lesser sanction could have been used. The EAT upheld that central finding.

What should HR do?

The lesson from Miller is not that employees can say anything they like because it is linked to a protected belief.

Instead, HR should look carefully at exactly what has been said or done.

Ask whether the conduct is closely connected to a protected belief. Then separate that from any inappropriate way in which the belief has been expressed.

Finally, consider why disciplinary action is needed and whether the proposed sanction is proportionate.

After Higgs and Miller, proportionality should be a key part of the decision-making process whenever alleged misconduct is linked to a protected belief.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

If you would like to discuss your situation or find out how we can help, contact our Employment Law solicitors today for expert advice and support.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

View Jon’s Profile

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.