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What should an employer do when an employee says something that is both offensive and protected? That is a question that has challenged courts and judges a great deal in recent years. 

On 4 August 2026, we received the latest instalment in a series of judicial decisions addressing the issue: the judgment of the Employment Appeal Tribunal (EAT) in Miller v The University of Bristol. 

The facts

Professor Miller was a Professor of Political Sociology at the University of Bristol. His academic work focused on state and corporate propaganda.

He held a philosophical belief that Zionism was inherently racist, imperialistic and colonial, and that it ought to be opposed. He was not, however, antisemitic.

In February 2021, he made a series of public statements, including a comment that members of Bristol University's Jewish Society were "political pawns for a violent, racist, foreign regime engaged in ethnic cleansing".

He was dismissed on 1 October 2021.

The Employment Tribunal described some of Professor Miller’s comments as "extraordinary and ill-judged" and to be "clearly of a provocative nature".

Nonetheless, the Tribunal concluded that his dismissal constituted direct discrimination on the grounds of religion and belief.

It held that his protected anti-Zionist beliefs were "writ large" (i.e. glaringly obvious) across his comments, that those beliefs had been a material factor in the University's decision to dismiss, and that dismissal was a disproportionate response in the circumstances.

The University appealed to the EAT.

Bristol's appeal: Constrained by the authorities

Of the University's nine grounds of appeal, the EAT partially upheld one (relating to the calculation of Professor Miller’s compensation). The remaining grounds were unsuccessful and were, broadly, characterised as disagreement with the Tribunal's conclusions rather than identifiable errors of law.

The EAT's conclusions are perhaps unsurprising. 

The outcome in Miller is, in essence, the result of the application of the two key Court of Appeal authorities in this area: Page and Higgs (both of which were binding on the EAT).

Whilst the University did seek to challenge whether Higgs was good law, its counsel acknowledged that this challenge was advanced only on a formal basis to preserve the point for any further appeal. 

This may, perhaps, be an indication that this is not the final chapter.

Is Higgs good law?

It would be fair to say that the combined effect of Higgs and Page introduces a significant departure from the conventional operation of direct discrimination claims under section 13, Equality Act 2010 (“EqA”).

Section 13 claims typically centre on the reason why the alleged discriminator acted as they did; specifically, whether the less favourable treatment complained of was because of a protected characteristic. If so, then a claim of direct discrimination succeeds. Whether the action was reasonable and/or proportionate plays no part in that conclusion. Motive is the sole concern.

And yet, following Page and Higgs, section 13 claims concerning the manifestation of religion or protected beliefs are now treated very differently. 

Where an employer acts in response to a manifestation of belief that has been expressed in an objectionable way, the question of whether the employer has directly discriminated against the employee depends on whether their actions were proportionate and justifiable in a human rights sense.

This is because, in short, Page and Higgs are attempting to reconcile the protections afforded under the EqA with certain Convention rights enshrined in English law via the Human Rights Act 1998 (specifically Articles 9 and 10).

And yet the outcome produced is somewhat unorthodox, to say the least.

As Miller illustrates, the practical consequence is that an employer (who may be acting in good faith and who could be faced with a genuinely difficult judgement as to the reasonableness and proportionality of a dismissal) may be found liable for direct discrimination simply because an Employment Tribunal (perhaps sitting years later and with the benefit of additional evidence) would have reached a different view on the appropriateness of a particular sanction.

That is a substantial departure from the classic "reason why" test that underpins all other section 13 claims.

So, was that reading down under section 3 of the Human Rights Act 1998 correct or necessary?

One might argue that the protection it seeks to achieve is already available under section 19 EqA 2010, which prohibits indirect discrimination and where objective justification already forms part of the statutory test.

Alternatively, one might argue that had Parliament intended for manifestation of belief claims to operate differently from all other direct discrimination claims, it could have provided for this in its legislation: either by addressing this directly in section 13 (as it did for age discrimination in section 13(2)) or by extending section 15 EqA (which prohibits discrimination from things "arising in consequence of" a disability) to cover the protected characteristic of religion and belief.

Section 15 would perhaps more naturally encompass manifestations: as it could be said that “things arising from" religion and belief might include the food a person eats, the clothes they wear, the way they practise their faith or express their values. And yet, the protections afforded under section 15 are currently confined to disability alone.

The current approach creates something of an anomaly in respect of manifestation of belief claims, as they are treated differently from all other section 13 claims. 

One now wonders whether the time is right for the Supreme Court to take an opportunity to provide some much-needed clarity in this (admittedly complex) area.

So what can we learn from Miller in the EAT?

Setting aside the issue of whether Higgs is good law, we think there are two practical takeaways for employers that emerge from this EAT decision.

1. The threshold for protection in respect of philosophical belief is perhaps lower than many employers might assume.

It is important to note that:

• Political beliefs are, at least in theory, capable of protection.
• A belief does not need to permeate every aspect of a person's life to qualify, and it need not constitute a "fully-fledged system of thought". It may relate to a single issue or cause, and it is sufficient that it affects a single but important aspect of that life.
• A belief grounded in scientific or empirical research is not automatically disqualified. A philosophically held belief that is reinforced by academic research, deeply held and not amenable to change, can qualify.

Broadly, it is likely that only those beliefs that are incoherent, insignificant, or truly abhorrent (such as those akin to Nazism or advocacy of violence) would fall outside the scope of EqA protection.

Controversial, offensive or deeply contested views, including those that many might find objectionable, will not necessarily fall short.

2. Separability should be carefully considered from the outset.

At the outset of any matter, it will be important for an employer to differentiate between (a) what does or does not form part of an employee’s protected belief, and (b) what is and what is not a true manifestation of that belief.

It is important to consider this at the earliest possible stage, including during internal procedures. 

In practice, this requires a careful exercise in dissection. 

Whilst the Tribunal in Miller found that his views were "writ large" through the February 2021 statements, the EAT acknowledged (at paragraph 151) that it is possible to separate out statements which are manifestations of protected beliefs from those that are not. 

We would perhaps go further, and suggest it would – at least in theory – be possible for employers to dissect phrases, or even sentences, into things that are protectable and things that are not. 

We acknowledge that this is not an easy exercise. But if an employer takes action in respect of offensive speech that can rightly be separated from a protected belief, then it might avoid many of the difficulties highlighted in Higgs and Miller.

For expert advice on managing protected beliefs in the workplace, contact our specialist employment law team.