David Miller: You are no Jo Phoenix!

Jews and Feminists have common cause against extremists who wish to shut down debate. Any conflict of interests is illusory.

Two weeks ago, the Jewish community in the UK was shocked by a ruling by an employment tribunal, that former University of Bristol lecturer David Miller was unfairly sacked. As the story was reported in the Jewish Chronicle (JC), the Employment Tribunal decision hinged on the conclusion that he was sacked for his anti-Zionist beliefs, which are a protected characteristic under the Equality Act, as anti-Zionism is a “belief worthy of respect in a democratic society.”

This wording in the Miller ruling parallels the Maya Forstater appeal court ruling, which set an important and welcome precedent that frees women (and men) from the fear of being sacked for stating and living by the very reasonable belief that biological sex is real and immutable. Most recently, Professor Jo Phoenix won her constructive dismissal case against the Open University at a Tribunal, after being bullied out of her job, in a ruling that also cites Forstater as a precedent. As a feminist and a Jew, and as someone who has personally experienced bullying for my own gender critical beliefs within our own UK Jewish community, I find the repeated citations of the Forstater case in the Miller ruling to be worrying.

To add to my concern, last week’s JC quotes Lord Mann (the Government's Independent Adviser on Antisemitism) as saying “The concept that an ideology needs protecting is totally ludicrous. What needs protecting are identities, not ideologies”. In other words, Mann appears to view the Forstater ruling as the problem here, and this has led to a push for the Attorney General to intervene to correct matters. As I argued briefly, in my letter to the JC published on Thursday, this approach is fundamentally wrong. I note that Lord Mann did qualify his position slightly on X by condemning “those trying to force students or staff out of universities because of their views” but without the Forstater ruling, how do we stop such actions?

There is a real danger that British Jews may view their interest in protecting Jewish students from antisemitic professors, as if this is in conflict with the campaign to protect feminists and others from viewpoint-based employment discrimination. However, a thorough understanding of the Miller case shows that such a reaction is unnecessary and counterproductive. This article aims to explain why.

If we look at the details, Miller won at the Tribunal only because the University of Bristol frankly messed up the dismissal by ignoring the complaints of Jewish students, giving Miller the impression that his behaviour was acceptable, and then taking drastic action when they felt the heat. Incredibly, they sacked Miller summarily rather than issuing a formal warning first and sacking later, as is good practice for any employer dealing with a potentially litigious employee. Moreover, the Tribunal discounted the damages by 50% as Miller was at fault, but his misconduct did not (in the view of the Tribunal) warrant immediate dismissal. In sum, this case is complicated.

Below, I give a play by play of the Miller case that can help us to understand what went wrong. Then we can draw lessons and understand the important differences between this case and Jo Phoenix’s well-deserved tribunal victory (also based on the Forstater precedent), which did not find Phoenix to be at fault in any way. We need to understand why any move to weaken the application of Forstater would be dangerous and indeed harmful to Jews.

Miller: A brief history
(or how not to handle a dismissal)

In order to avoid misinterpreting Miller’s tribunal win, it is crucial to understand how matters progressed at Bristol, and how badly the University of Bristol handled both Miller’s misconduct and his subsequent dismissal.

Complaints and Inaction

David Miller began teaching at Bristol as a tenured professor in 2018, having moved from the University of Bath. As tenured faculty, his position was secure and he could be dismissed only for gross misconduct.

In February 2019, as part of his lectures in his module “Harms of the Powerful”, he listed the “Zionist Movement (parts of)” as one of the “Five pillars of Islamophobia”. Just in case you might interpret this charitably as referring only to fringe elements such as Kahanists, he presented a slide, showing a sinister web of connections between Jewish organisations and Israel, including the Community Security Trust (CST, the UK organisation which provides security for synagogues, Jewish schools etc.). In his later comments (see below), he would add to this list the Union of Jewish Students (UJS).

In other words, Miller’s “anti-Zionism” was really hatred for Zionists - code for Jews. Miller’s statements went way beyond criticism of Zionism, accusations of genocide against Israel, arguments for a one state solution, apologetics for terrorism, or the other things that we are used to hearing from self-styled “anti-Zionists” in polite company and which we might find offensive. As is common among such individuals, he was using “anti-Zionism” as a cover for what would otherwise be clearly identified as antisemitism. He hated Zionists - i.e. Jews.

Jewish students could see this, as could the CST, which made a complaint in March 2019, which was rejected by the University on 3 April as the CST was not part of the university (so lacked standing). So Bristol students along with the UJS launched their own complaint on the same day, expanding on the complaint in May. However, these complaints were rejected by the University in June. As explained by the Tribunal, Professor Paddy Ireland rejected the complaints, concluding that Miller’s statements were not antisemitic, as he viewed IHRA definition of antisemitism to be “controversial” and not authoritative.

This was followed by a complaint by John Mann MP in July (which was again rejected for the same reason as that of the CST). The students also launched an appeal in July, specifically at Patterson’s dismissal of the IHRA definition of antisemitism. Finally in December 2019, the University adopted the IHRA definition of antisemitism, which allowed the complaints to be viewed in a different light. The University then hired Ms Aileen McColgan KC in April 2020 to review whether Miller had indeed been antisemitic. In December 2020, McColgan concluded that there was “no formal case to answer”.

From an employment law point of view, the failure of the University to censure Miller at all during this period is significant. However disturbing Miller’s actions were (objectively speaking), when you take actions and your employer ignores them or condones them, you as an employee are justified in concluding that your behaviour is acceptable (even if objectively speaking it is unacceptable). The University essentially told Miller that his anti-Zionism was acceptable and not antisemitic, which is not surprising as his anti-Zionism was known when they hired him. I argue that these early failures lie at the root of Miller’s later success at Tribunal.

Public Arguments

Since the University had rejected all of their complaints, students turned to the press. The Jewish Chronicle and the Telegraph published articles in July 2019 quoting students. Unlike the University, the Labour party did take action, suspending Miller in May 2020.

Emboldened by his apparent exoneration by the University and angered by the public attacks on him in the press and by the Labour Party, Miller’s behaviour from 2019 to 2020 became more inflammatory. In June 2020, speaking to the Labour Left Alliance, Miller famously complained that interfaith work between Jews and Muslims was a “Trojan horse.” As reported by David Hirsch in Fathom, he considered a chicken-soup making event at the East London Mosque to be “an Israel-backed project for normalising Zionism in the Muslim communities.”

In July 2020, he appeared alongside Jackie Walker, Chris Williamson and other hard left antisemites and hit out again at the CST, blaming it for a “witch hunt” against him that deliberately blurred the distinction between anti-Zionism and antisemitism. He argued that the CST should be investigated and defunded. This led to condemnation from the UJS, which depends on the CST for security. Miller’s comments made Jewish students feel unsafe - not in the sense that the phrase is often misused by “social justice” activists, but real fear for their actual physical safety.

Students then turned to Twitter, calling on the University to sack Miller as well as making their complaints public in the Tab student newspaper. As late as October 2020, Sabrina Miller reported in the Tab that the University still “refused to say if it had received complaints about or investigated David Miller, citing legal reasons.” They cited their “obligation to uphold freedom of expression”.

In other words, the University was determined to keep the complaints and their responses to them confidential as they were focused on possible damage to their reputation, while students (and apparently Miller) wanted matters debated publicly. Miller on his part viewed the public complaints about him as part of an orchestrated campaign of harassment by “supporters of the Israeli state” and this formed (an unsuccessful) part of his complaint to the Tribunal.

The Last Straw

The last straw was an open letter that Miller sent on 18 February 2021 to Ben Bloch of the Tab, which Ben Bloch tweeted. In the letter, Miller lashed out at the UJS as well as at Bristol’s Jewish Society, which he called an “Israel lobby group” that was trying to get him sacked.

Zionism is and always has been a racist, violent, imperialist ideology premised on ethnic cleansing. It is an endemically anti-Arab and Islamophobic ideology. It has no place in any society.

Bristol’s JSoc, like all JSocs, operates under the auspices of the Union of Jewish Students (UJS), an Israel lobby group.

He complained that a Zionist activist had “pretended to be a student in his classes for which she was not registered, expressly for the purpose of political surveillance” as part of a “campaign of censorship… directed by the State of Israel” In other words, not only did he refuse to engage in productive dialogue with the students who complained about his antisemitism, but he considered those students to be agents of the State of Israel. These were public accusations against individual students at his own university.

The same month, he also publicly attacked the UJS on Electronic Intifada.

This open attack against students at his own university crossed a line and led to a flood of complaints from politicians and donors to the university among others. In March 2021, the University finally announced a new investigation into Miller, requesting a second report from McColgan KC, this time with the IHRA definition of antisemitism in mind. But McColgan again concluded in May 2021 that, with respect to antisemitism, Miller had no case to answer and that his claims about the UJS were arguably factually true. However, she left room for him to be disciplined on other grounds:

But employees, even academics, owe obligations to their employers by virtue of their status as employees, and employers are entitled to impose reasonable standards of behaviour on their staff. These standards will include restrictions on expression which is lawful and protected under Article 10(1) ECHR, and on the manner in which information or opinions which would fall within an academic’s area of expertise is conveyed….

Care would need to be taken where criticism was rooted in academic disagreement but academic freedom would not in my view extend to the protection of personalised or vitriolic abuse, as distinct from a robust expression of professional disagreements.

Professor Banting of the University then produced a report which found that Miller had cases to answer on a number of matters but not to do with his anti-Zionism or complaints of antisemitism. Rather, there was a potential breach of the Rules of Conduct for Staff. A hearing took place in September 2021 during which he was extensively cross-examined by Professor Norman. Professor Norman concluded that Miller’s actions towards students in engaging in a pubic brawl with them (including breach of confidentiality, breach of health and safety and breach of rules and procedures) amounted to gross misconduct, for which he was dismissed.

The Tribunal

Miller appealed and failed. He then took the University to an employment tribunal. For details, I recommend the analysis from

Joshua Rozenberg

KC (hon), but in short, the Tribunal ruled this month that Miller had been unfairly sacked because, although he had breached codes of conduct, “it was not proportionate to dismiss in these circumstances.” Rather, “a disciplinary warning would have been both fair and proportionate”.

Now it is true that the Tribunal ruled that Miller’s anti-Zionism met the tests for a belief that deserved respect in a free society. However this conclusion really should not come as a surprise, as they were merely echoing the conclusions of McColgan KC, who was hired by the University (twice!) to examine whether Miller had been antisemitic, the second time in light of IHRA. I believe that McColgan’s analysis is faulty and biased. Did she really liaise with MI5 and find evidence that the students publicly attacked by Miller were on the payroll of the Israeli State? But since Miller denied antisemitism and since the University of Bristol’s own report cleared him of antisemitism, on what grounds was the Tribunal to rule any differently?

It therefore was necessary for the University to prove that Miller was not dismissed for his anti-Zionism. The problem was that the University simultaneously argued that Miller was not dismissed for his anti-Zionism while at the same time, at his disciplinary hearing, they questioned Miller extensively on his anti-Zionist beliefs, for example his belief that “Zionism is a racist endeavour” and Miller’s dismissal letter cites his anti-Zionism extensively. The Tribunal concluded:

We therefore conclude that the claimant’s expression of his anti-Zionist beliefs in the February comments had a material impact on Professor Norman’s decision.

The Tribunal did not, as some suggest, rule for Miller simply because he was sacked for his anti-Zionism, which they deemed a protected characteristic. Rather, Miller’s anti-Zionism played a role in his dismissal, and therefore, by ruling that anti-Zionism was worthy of respect, the Tribunal weakened the University’s case for Miller’s dismissal. This raised the question whether outright dismissal was proportionate based only on his Code of Conduct violations, or whether, based on just the Code of Conduct violations, the University should instead have given Miller a written warning.

It is here that the dithering of the University, and their failure to respond in any substantive way to student complaints, or to warn Miller to improve his behaviour —these undermined their case. The Tribunal notes that

the University had not been clear and consistent in the way in which it treated comments which could be said to both impact on its reputation and on the rights and reputations of students. In our view, this impacts on proportionality and the issue of less intrusive means.

311. The University did not even warn the Claimant for comments he made in the October 2020 Tab Article….

313. Further, no warnings or disciplinary action of any sort were taken…

The Tribunal concluded that “it would have been proportionate to issue some disciplinary sanction against the claimant short of dismissal.”

In view of the fact that the University dithered in taking any action against Miller, giving him the impression that his behaviour was acceptable, but then summarily sacked him without giving him a chance to improve his behaviour, I am afraid that I cannot help but reluctantly agree with the Tribunal here. I find it difficult to see how they could have reached any other decision. Every employer knows that you do not sack without a written warning except in the most extreme of circumstances (such as an immediate safety risk). Their dithering and apparent U-turns proved that this was not an urgent matter, making their position untenable.

The Tribunal was essentially giving the University a well-deserved slap on the wrist for mismanaging the dismissal. If Bristol University had handed Miller a final warning, he would almost certainly have responded injudiciously, and then they would have sacked him a bit later, and he would have had few grounds to sue.

What went wrong?

Studying the play by play of this sad saga, it is obvious that the University of Bristol brought this Tribunal judgement on themselves by mismanaging the Miller case in a way that harmed all parties concerned. When students first brought complaints against Miller, the University was dismissive. At that early stage, if Miller had been asked to engage constructively with Jewish students, two outcomes could have resulted. By some miracle the dialogue may have led to some tempering of his extremism and protections for Jewish students in his classes who disagreed with his views and feared discrimination. More likely, he would have exposed his antisemitism for all to see by lashing out against students (#LetThemSpeak comes to mind), making it easier to make a legal case for his dismissal.

As it happened, Jewish students saw no action taken time and time again, and they then resorted to public criticism. Such public arguments simply reinforced Miller’s worldview that Zionists were trying to control British institutions, leading to a spiral of increasingly extreme statements by Miller as well as real threats to his livelihood coming from Jewish students, politicians, donors and others. The fact that he may have merited sacking is immaterial to the reality of the pressures he faced, which made his increasingly unhinged reactions entirely psychologically predictable.

Moreover, by failing to warn Miller at any stage that his behaviour needed correcting, and by even hiring a KC who found that Miller was not antisemitic, the University set themselves up to fail at the Tribunal. This case should serve as a warning to any employer dealing with such a person in future, that they must promote constructive dialogue at an early stage in such conflicts, rather than dismissing problems and hoping that they will go away, and then taking drastic action when they are under pressure and fear embarrassment. This is a case study on how not to manage an awkward employee.

Is anti-Zionism is a view worthy of respect?
(Do we care?)

Some people (such as

Melanie Phillips

) have responded to the Miller verdict by making a distinction between anti-Zionism and other beliefs that are worthy of respect such as (I would argue) sex realism. I question the usefulness of such arguments. Yes of course I do agree that sex realism is worthy of respect in a way that anti-Zionism is not. Anti-Zionism is in my opinion intrinsically linked with hatred, whereas sex realism is not. In fact the trope that sex realists are full of hatred for trans people is similar to the antisemitic trope that Jews are full of hatred for Palestinians.

But that is beside the point because, as explained above, if Bristol University had not mismanaged this case so badly, they could either have forced Miller to moderate his behaviour, or else sacked him legally (if he had failed to do so). Also, as explained elsewhere by

Joshua Rozenberg

KC (hon), the primary reason for Miller’s dismissal was his abusive behaviour towards students. Even if he felt under attack, there was a power differential between him and them, and he failed to temper his behaviour to account for that power differential. There was no need to argue that his views were offensive.

If we look at Jo Phoenix (who was bullied out of the Open University and recently won at Tribunal) or Kathleen Stock (who was bullied out of the University of Sussex some years ago and did not sue), these cases are very different from Miller, since there were no credible accusations of misconduct against either woman. Rather, they were bullied by a mob who specifically refused to engage in dialogue, following the anti-liberal principle #NoDebate. One student at Sussex even said:

I remember being sent emails about ‘listening to other’s opinions we may disagree with.’ If I’m perfectly honest, I found them quite stupid. My rights as a human being are not some opinion, and they should be respected.

Kathleen Stock actively sought constructive conversations with students who did not share her views, and these students actively sought to block such conversations (for example when she spoke at the Oxford Union). The Jo Phoenix case is very similar. That is why, unlike Miller, Jo Phoenix won her case outright, without censure.

What would have happened, I wonder, if Sussex or the Open University had responded to the complaints about Stock or Phoenix as I suggest Bristol University should have done with Miller, by inviting students to have a civilised conversation, so that both sides could listen to each other in the custom of the academy and intellectual curiosity? We already know the answer from what happened at the Oxford Union. Neither of these women avoided dialogue with those who disagreed. Rather it was their opponents who sought to avoid dialogue and silence dissent. Why? I suggest that it is because they did not have coherent arguments to offer. #NoDebate is the bully’s motto for illiberals who cannot win at rational arguments. Those confident in their positions will instead say #LetThemSpeak and have faith in the disinfecting power of sunlight.

We do not know what would have happened if Bristol had sought to encourage constructive dialogue between Miller and the Jewish students he had upset so badly and if Bristol had set safeguards to protect the right of the students in his classes to disagree with his anti-Zionism without fear of being harassed or downgraded. Perhaps he would have found it impossible to act in a civil, even-handed manner and he would have revealed his antisemitism. Perhaps he would have refused to engage at all. Perhaps he would have listened enough to moderate his behaviour enough to stay in post despite his distasteful views. If so, then that must be an acceptable result to us.

What limits can be placed on “speech worthy of respect”?

I have outlined above one red line that distinguishes positions worthy of respect from those not worthy, and it is not a substantive red line, but a behavioural one. An “anti-Zionist” lecturer who is capable of sensible civilised conversations with Zionists, and who would defend a Zionist student who is being abused by classmates for daring to disagree - that anti-Zionist would in my view be absolutely worthy of respect, and it would be beneficial to have such individuals in the academy whom I could speak to as a Zionist. I also suspect that such an anti-Zionist would not be antisemitic. Miller does not appear to be such an anti-Zionist.

An “anti-Zionist” lecturer who is capable of sensible civilised conversations with Zionists, and who would defend a Zionist student who is being abused by classmates for daring to disagree - that anti-Zionist would in my view be absolutely worthy of respect…

Miller does not appear to be such an anti-Zionist.

When faced with often idiotic abuse from ideological students, Kathleen Stock was capable of playing adult to their child. By contrast, even if one could argue that Bristol students should have been more grown up in their attacks on Miller, when faced with these attacks, rather than being the grown up and calming things down, Miller childishly retaliated and allowed matters to escalate. You can argue “Oh but his job was at threat”, but his childish responses created a self-fulling prophesy and proved his critics right. We therefore obtain:

Rule Number One:

To have an academic view worthy of respect, you must conduct yourself in a manner appropriate to the academy and be capable of civil dialogue with those who disagree with you (within reason).

I qualify this by saying within reason because, for example, it is a bit excessive to demand that I respect someone who explicitly promotes mass murder and I might get rightly irritated by someone who simply will not step back and allow a lecture to progress when time is limited (or so others can also express their views). Any such rule has a reasonableness limitation. But I should point out that by this rule alone, Miller as well as dozens or perhaps hundreds of academics in the USA and the UK would probably merit sacking. Anyone who shames a student for disagreeing on a controversial topic, or who tells a student that they are not allowed to disagree with another student whose identity category makes their views incontestable - this is intellectual bullying and such an individual has no business teaching at any university.

You may of course argue that this rule is insufficient. What about a holocaust denier who (unrealistically) is perfectly capable of a civilised conversation to defend his or her views? Do I really need to respect the views of someone who is explicitly racist or is recruiting for the KKK? What about a serious breach of conduct? So yes, we would need a few more guidelines.

Rule Number Two:

Academic views worthy of respect do not include statements that are demonstrably false or promote serious illegality (such as recruiting students to join ISIS/Daesh). An academic who cannot accept correction on patently false or illegal matters and who uses his or her position to indoctrinate students in crank theories that lack empirical foundations or to incite students to engage in violence is not fit to be in post.

This rule covers such crank ideas as the theory that Jews are really Khazars, or that the earth is flat, or Holocaust denial / minimisation. Not all such positions will be offensive. Some will just be silly. Yes there can be some grey areas (such as many disagreements regarding Israel-Palestine or claims that “trans women are women”), but those are normally resolved when such individuals are challenged to support their positions and then become abusive, thus violating Rule Number One.

And of course academics should also abide by basic codes of conduct that allow the academic community to function (such as not being physically abusive, GDPR etc), but that is a separate matter. A separate question also relates to how these rules apply beyond the academy, but I would argue that in a liberal society, viewpoints worthy of respect at a university should also be worthy of respect in society at large.

In fact, I would argue that for most professions, even greater latitude is justified than for academics, as it is conduct that matters. Offensive or upsetting views are relevant only if they materially affect a person’s capacity to do their job (for example safety concerns if an employee promotes terrorism online). If my groceries are delivered by a driver who supports the BNP, this does not matter to me as long as they are courteous, and frankly I do not see how society will be made any safer or any less racist if all the racists are jobless and idle.

Where do we go from here?

It is tempting to argue that a viewpoint is not worthy of respect simply because this view is harmful or upsetting to us. But we need to remember that once the principle is established that a viewpoint can be silenced, that principle will inevitably be applied to those whose unpopular positions most need to be heard — it will be applied to us. As a minority group in the UK, we Jews are more likely than not to be the subject of such silencing campaigns. It is unfortunately common for the perpetrators of abuse to act as cry-bullies, claiming victim-hood even as they seek to ruin the lives of innocent victims. Kathleen Stock’s own tormentors did precisely this in language strikingly similar to Miller’s complaints about a Zionist plot to have him sacked.

It would be the height of folly for anyone to respond to the Miller ruling by seeking legislation to weaken the application of the Forstater ruling, to narrow the range of views that could be deemed worthy of respect. This would come back to bite us since anyone who looks at identity politics should understand that the same people who are gunning for feminists are also gunning for Jews — We will be next.

Miller’s shaming of students was an abuse of his position. The hounding and shaming of gender critical academics is a similar kind of abuse. These illiberal behaviours should be sufficient to justify dismissal for academics, expulsion for students. Had Bristol University managed this matter competently, Miller would have had no grounds to sue. It is to the shame of academic institutions that they need to be reminded about the boundaries of civil discourse.

We must not play the same game as hateful hard left activists who do not value civil discourse. Rather than risk silencing people whose ideas upset us, my motto is #LetThemSpeak. Let anti-Zionists and other cranks be challenged to back up their claims; if we have faith in the cogency of our own positions, such frauds will discredit themselves. Better this than to silence them so that they can play the victim (as Miller has done).

The question Jewish people need to ask is how we can protect our own university students from real abuse - such as Zionist students being discriminated against by faculty who cannot engage in civil academic dialogue with those who hold different views. We need to call out those who abuse their power, who silence or shame those who think differently rather than answering arguments and evidence with their own arguments and evidence. Importantly, this condemnation must include those who claim to be “on our side”, such as pro-Israel activists who shout down the critics of the Israeli government, as well as the online mob who have recently been so abusive of gender critical moderates such as

Andrew Doyle

and

Stella O'Malley

, who (they argue) acted treacherously by daring to be civil to Debbie Hayton. We must practice liberalism.

In order to protect Zionists, we also have to protect anti-Zionists. In order to protect Gender Critical Feminists, we must also protect their critics. But this protection ends when you cannot participate appropriately in the civil discourse of the academy, a fault shared by both Miller and the self-styled “Social Justice” activists seeking to silence feminists.