Employment tribunal and court judgments | February 2024

Miller v University of Bristol 

University professor's anti-Zionist beliefs were protected under the Equality Act.

Background

The Claimant in this case was employed by the University of Bristol as Professor of Political Sociology (whereby his anti-Zionist views were well known both prior to and during his employment) until he was dismissed for gross misconduct in October 2021.

Following a number of complaints regarding comments made by Professor Miller in both lectures, events and articles (which led to considerable public criticism of the University), the University conducted a disciplinary hearing and, whilst recognising the importance of freedom of speech and academic freedom, summarily dismissed Professor Miller for gross misconduct, his having been found to have breached the University's Equality & Diversity policy and Acceptable Behaviour at Work policy.

Professor Miller contended that he was subject to an organised campaign by groups and individuals opposed to his anti-Zionist views which were aimed at securing his dismissal and that the University had failed to investigate and/or support him in respect of this campaign, instead subjecting him to discriminatory and unfair misconduct proceedings which culminated in his summary dismissal; he therefore, issued claims for direct discrimination, harassment, unfair dismissal and wrongful dismissal.

Employment Tribunal Decision

The Employment Tribunal (ET) held that Professor Miller's anti-Zionist belief amounted to a protected philosophical belief for the purposes of the Equality Act and, given he was dismissed because of the manifestation of this protected belief, his dismissal was an act of direct discrimination. Whilst the University argued that it had legitimate aims in dismissing him (in terms of balancing the human rights of others and protecting its reputation and interest), the ET considered the decision to dismiss to be disproportionate to these aims.

As the Claimant's dismissal was held to be discriminatory, it was also held to be both unfair and wrongful, however, his compensation was reduced by 50% as a result of his contributory conduct. The Claimant's claims for harassment failed.

Practical considerations

When dealing with disciplinary matters involving potential protected beliefs, employers should therefore properly consider (i) whether the belief is capable of amounting to a protected belief; and (ii) if so, whether a less severe sanction would be appropriate in the circumstances to alleviate any discrimination risks. Employers should also ensure consistency of treatment for similar issues (a point for which the University in this case was criticised) as this will assist in demonstrating that any disciplinary sanction is both proportionate and fair in the circumstances.

Blackdown Hill Management Limited v Tuchkova

Employment Appeal Tribunal decision reiterates the importance of proper consideration of redundancy selection pools.

Background

The Claimant was employed as a Legal Project Manager by Blackdown Hill Management and was responsible for a wide range of matters, including legal matters, project management and administration. The Claimant went on maternity leave in March 2017 and, prior to her scheduled return, was invited to a meeting in which she was told there was "no work" and that she should look for another job, but that she could undertake the reviewing, filing and auditing of Blackdown's legal documents in the meantime. The Claimant was then informed in May 2018 that she was at risk of redundancy and, having been placed in a pool of one and having rejected the offer of alternative employment as being unsuitable, was made redundant in July.

The Claimant brought claims for unfair dismissal, direct sex discrimination, maternity/pregnancy discrimination and harassment.

The Employment Tribunal (ET) upheld the unfair dismissal claim. The ET also upheld the claims of direct sex discrimination in part, however, dismissed the claims of maternity/pregnancy discrimination and harassment. The Respondent appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal (EAT) Decision

The EAT upheld the decision of the ET in relation to the unfair dismissal claim. Whilst tribunals will not lightly interfere as to the scope of a redundancy selection pool, the ET & EAT considered the employer in this case had failed to conduct a proper consultation, evaluation and selection exercise and consider whether the Claimant should be placed in a wider pool; whilst arriving at a pool of one was not necessarily wrong, the unfairness lay in the fact that that question had not been adequately considered. The EAT noted that, where a job appears to be uniquely at risk, this does not necessarily mean that it is fair for the employee to be in a pool of one.

Practical consideration

This finding serves as a reminder to employers to properly consider selection pools at the outset of a redundancy situation. It would be best practice to ensure there is documentary evidence of the evaluation and selection exercise that takes place and ensure that any decisions as to pooling are capable of justification. Whilst a redundancy selection pool of one does not automatically make a redundancy process unfair, it will be important to show that thought was given to this decision and that alternative options were considered.