David Miller rides again?

Part One: The Employment Appeal Tribunal

David Miller and his legal team have hailed the recent judgment of an Employment Appeal Tribunal as “a landmark victory” for people who hold “anti-Zionist beliefs”.

Miller was sacked by Bristol University in October 2021. A subsequent Employment Tribunal (ET) judgment found that his dismissal had been unfair and discriminatory because it related to what the law calls a “protected belief”. In Miller’s case: “anti-Zionism”.

The ET also found that a lesser penalty than dismissal would have been appropriate, that Miller’s own conduct had contributed to his dismissal, and that Miller would probably have been fairly sacked in the light of subsequent incidents. A number of Miller’s other claims of discrimination and harassment were also dismissed by the ET.

Bristol University lodged nine grounds of appeal against various aspects of the ET judgment. Miller lodged four grounds of appeal.

The outcome of the subsequent EAT was rather less shattering than Miller and his legal team have claimed. It is certainly not a “landmark victory". The EAT webpage which carries the judgment defines it as “not landmark”. And none of Miller’s own grounds of appeal were upheld.

An EAT hearing is not a re-run of the original ET hearing. Matters of fact are determined by an ET, not by an EAT. An EAT will overturn all or part of an ET judgement only if it involves a mistake on a point of law, or if it is perverse (i.e. so off-the-wall that no ET could reasonably have reached such a conclusion).

An EAT will not entertain legal arguments which could and should have been raised at the ET hearing itself. Nor will an EAT allow evidence to be introduced which relates to incidents subsequent to the ET hearing.

In that legal context, it was unsurprising that Bristol University’s grounds of appeal, with one partial exception, failed to cut any ice with the EAT.

The University argued at the EAT that the ET had failed to consider Miller’s “true beliefs”, concealed behind his stated belief. But in the ET hearing the University had stated that the only belief in question was the one defined by Miller. It had made no reference to any hidden “true beliefs”. It was therefore too late to try to run that argument at the EAT.

In fact, the University’s legal strategy at the ET hearing was so pathetic that it did not even argue that Miller’s beliefs were antisemitic: “[Bristol University] confirmed that its position was that nothing the claimant said or did was antisemitic or in contravention of the Equality Act.” The University could not claim otherwise at the EAT.

The University argued at the EAT that Miller’s stated belief did not meet the legal criteria of what counts as a protected belief. Embarrassingly, the University got the criteria wrong.

It argued, for example, that a political belief could not be a protected belief, that a belief based on scientific or empirical research could not count as a protected belief, and that a belief had to be “a touchstone to [a person’s] life” to count as a protected belief. All those arguments were simply inconsistent with established caselaw.

And, in any case, the forum in which to have raised such arguments was the ET hearing. An EAT is not an opportunity for a second bite at the cherry.

The University also argued at the EAT that the ET had erred in law in concluding that Miller had been dismissed because of his protected belief.

But, as the EAT pointed out, the reasons why Miller was dismissed were “pre-eminently matters of fact” to be determined by the ET. It was not the role of an EAT to overturn an ET’s findings of fact (unless they reached the level of perversity, which was not argued by Bristol University).

Similar findings by the EAT applied to the University’s grounds of appeal regarding “proportionality” (i.e. Miller’s dismissal was a proportionate means to achieve a legitimate aim) and the ET’s finding of unfair dismissal. In both cases the University was, impermissibly, trying to use the EAT as a re-run of the ET itself:

“The litany of criticisms levelled by the appellant (Bristol University) at the ET’s decision on proportionality are ultimately no more than expressions of disagreement with the conclusion reached by the ET and an attempt to re-try the issue of proportionality.

"[The challenge to the ET’s finding on unfair dismissal] is an invitation to this Tribunal (i.e. EAT), which we reject, to usurp the function of the first-instance Tribunal (i.e. ET) sitting as an industrial jury.”

Only one of the University’s grounds of appeal was partially upheld by the EAT. The ET had failed to properly explain its conclusion that only a 30% reduction in Miller’s award should be made (in addition to a 50% cut because Miller’s own conduct had contributed to his dismissal) because he would have been fairly dismissed two months later.

Anyone seeking to make political capital out of the EAT judgment (“a landmark victory”) is therefore searching in vain. The judgment is a very dry set of legal findings – because that is the role of an EAT. The judgment did not establish any new point of law. Hence it was “not a landmark”.

The lack of any substance to the arguments – from both the University and Miller – is reflected in the composition of the 45-page EAT judgment.

The first fifteen pages summarise the ET judgment. Twelve pages then summarise the grounds of appeal, from both parties, and another seven pages the relevant law and caselaw. Only eleven pages are given over to actual discussion of the overall 13 grounds of appeal, with Miller’s grounds being given even shorter shrift than those of Bristol University.

The euphoric response of Miller and his dwindling band of followers to the EAT judgment is grossly misplaced. Politically and legally, the judgment was pretty much a non-event.

Miller’s grounds of appeal had no chance of success. And the “abysmally stupid legal strategy” (Jewish News) pursued by Bristol University at the ET hearing meant that the University had no chance of success either.

Part Two: Miller’s “True Beliefs”

Bristol University was unable to argue at the EAT that Miller’s “true beliefs” – hidden behind the anodyne version of antizionism which Miller had presented to the ET as his protected belief – did not meet the legal criteria for what counts as a protected belief.

This was because it had failed to do so at the ET hearing. This failure was, to put it mildly, unfortunate: Miller’s “true beliefs” pose a very large question mark against whether his antizionism is worthy of respect in a democratic society (one of the criteria for what counts as a protected belief).

According to Miller, the Zionist movement is seeking world domination: “The enemy we face is trying to impose its will all over the world.” Zionism is “the functional ideology of the world”. Britain is subject to “an extraordinary Zionist stranglehold.” There are “Zionist entryists and spies at senior levels in every major British institution.”

Israel had “tried to dictate the outcome of the [2017 and 2019] general elections and, by any yardstick, succeeded to a great extent.” Zionist influence was also “one of the key reasons why Corbyn was sunk.” Zionists had used “the time-honoured tactic of smearing any critic of Israel or Zionism as an anti-Semite.”

“The Zionist movement, and the Israeli government,” Miller has written, “are the enemy of the Left, the enemy of world peace, and they must be directly targeted.” Zionism “has no place in any society.” The solution is: “Every single Zionist organisation the world over needs to be ended. Every. Single. One.”

These are Nazi-grade antisemitic themes in the guise of antizionism: the drive for world domination, the undermining of national sovereignty, behind-the-scenes control, bogus accusations of antisemitism, the only solution is complete eradication…

In August 2023 Miller tweeted: “Judeophobia barely exists these days. The facts: 1. Jews are not discriminated against. 2. They are overrepresented in Europe, North America and Latin America in positions of cultural, economic and political power. 3. They are therefore in a position to discriminate against actually marginalised groups.”

This cost Miller the backing of some of his most enthusiastic supporters. “Straightforward antisemitism” wrote Owen Jones. “Miller has outed himself as an anti-Semite,” wrote Michael Rosen. Others soon followed in their footsteps, including Tony Greenstein.

When even Tony Greenstein – expelled first from the Labour Party for antisemitism, and then more recently from the Greens for the same reason – accuses you of expressing “clearly and undoubtedly antisemitic views”, you have a serious problem.

Miller’s tweet was presented as evidence in his ET hearing. And yet, combining cowardice with incoherence, “the appellant (Bristol University) did not seek to suggest that the August 2023 tweets were antisemitic.” Is it any surprise the University lost?

In the years following the ET hearing of 2023 Miller’s antizionism has become even more openly antisemitic, with the pretence that his target is Zionists rather than Jews largely having been abandoned.

In 2024 Miller tweeted: “There is no shadowy cabal of ‘capitalists’ fighting against anti-imperialism in the UK, but instead organised and established Jewry and Jewish institutions, which are overwhelmingly Zionists and work directly for the state of Israel.”

According to a subsequent succession of tweets, Luke Akehurst’s selection to stand as a Labour candidate in the 2024 general election marked “the night the British state was totally captured by genocidal Jewish supremacists,” the Jewish Labour Movement was a “Jewish supremacist sect”, and “most British Jews support the genocidal ideology which fuels the mass murder of Palestinians, including infants.”

Owen Jones, Mehdi Hassan and Ben Jamal, wrote Miller, are all Zionists whose politics amounted to the demand that “Palestinians can live under the rule of those who come from Odessa, Warsaw, Brooklyn and Finchley to rape them, kill their children and steal their land.”

New York Mayor Zohran Mamdani has also been described by Miller as “a Zionist and a servant of Zionists.”

Defining Jones, Hassan, Jamal and Mamdani as Zionists might suggest that Miller’s belief lacks the “cogency and coherence” which is one of the criteria of a protected belief. On the other hand, spiritualism – the belief in an ability to speak with the dead – has been found to be a protected belief. Clearly, the bar for “cogency and coherence” is a particularly low one.

Islamophobia, Miller has also written, is a feature of British Jews: “Instead of hyperventilating about imaginary Judeophobia, the British left should be concerned with actually existing racism, not least the very significant Islamophobia which festers amongst British Jewry and has been doing actual damage for the past 20 years.”

Far-right attacks on Muslims, claims Miller, have been engineered by Israel. They “should be seen as the latest phase of the State of Israel's war on British Muslims. These riots are designed to punish Muslims for their anti-Zionist sentiment after various other methods to suppress opposition to Zionism by the State of Israel have been thwarted.”

“Zionist counter-protests” had failed to mobilise significant numbers. “Sporadic Zionist thuggery” had failed to intimidate Muslims. So “now the State of Israel is weaponising its cannon fodder on the white nationalist far-right.”

The EAT noted in its judgement that the ET “accepted the claimant’s evidence that he did not oppose or hold antipathy towards Jews or Judaism. It accepted his evidence, given in cross-examination, that he was not supportive of or ‘open to’ the use of violence as a means of opposing Zionism.”

But in a speech given while in Lebanon for the funeral of the former Hezbollah leader Hassan Nasrallah in February 2025 Miller said:

“The Zionists cannot be reformed, they cannot be existed with. There cannot be any peace agreement with Zionism. Zionism as an ideology, as a settler colonialist system, must be destroyed. The Zionists must be removed from the Levant and that can only be done by military force. To do that Iran will have to fight.”

The following month Miller tweeted:

“Protests are not enough. Listen to our brothers and sisters in Gaza. Those who are interested in ending this genocide must begin by targeting those responsible near them: the entire Zionist movement globally must live in fear of accountability until it is dismantled and its ideology eradicated. And let’s be clear, there are Zionists everywhere. In every town and city. Find out where they are.”

The previous day Miller had tweeted that the vast majority of British Jews were Zionists who felt personally connected to Israel. His call to track down and target Zionists needs to be read in that context.

Running true to form, in his response to the EAT judgement Miller portrayed himself as the plucky victim of targeted persecution by Israel. The judgment was “a public humiliation for the genocidal Zionist regime, whose assets in Britain bullied the University into sacking me and then dragged them into this futile appeal.”

Miller even claimed that the judgment was his ticket to reinstatement at Bristol University: “I now look forward to returning to work as professor of political sociology at the University of Bristol, to have my career reinstated and be free to work in higher education without fear of intimidation or reprisal.”

Surely not even Bristol University could be that stupid?