Izzy going to win? Or does Pride go before a fall? Folau brings claim of unlawful termination against Rugby Australia

The Australian Rugby Union player, Israel Folau (known informally as ‘Izzy’), has announced that he intends to bring a claim against his former employers for terminating his contract. Mr Folau had his contract with Rugby Australia terminated as result of a social media post he made which read, “Homosexuals, Hell awaits you”. The backlash resulted in a number of sponsors terminating their commercial relationships with Mr Folau and the termination of his contract with Rugby Australia

Mr Folau claims that his contract was unlawfully terminated by Rugby Australia, as he was merely expressing a religious belief that he genuinely holds. In commencing this action, he has stated that, “No Australian of any faith should be fired for practising their religion”. He is reportedly claiming up to AUS$10m (£5.5m) in damages.

What does the law say? 

Here in the UK, legislation was passed on 1^st December 2003 which made it unlawful for an individual to be discriminated on the grounds of their sexual orientation. The very next day, another Act was passed which also made it unlawful for someone to be discriminated against because of their religious beliefs. Both these rights are now included within the Equality Act 2010. However, since some religions hold homosexuality, or at least homosexual practices, to be ‘sinful’, there is clearly a potential for conflict between employees with opposing rights.

Whilst Australia is ruled by its own legislation, many cases of this nature have previously been brought before the UK Courts:

1. In Apelogun-Gabriels v London Borough of Lambeth (2005), Mr Apelogun-Gabriels, a Christian, printed out a range of Biblical extracts which his employer (Lambeth Borough) considered homophobic. He was dismissed for distributing these extracts to members of a work-based prayer group and other “interested parties”.

The tribunal dismissed his claim for discrimination, as it found that the distributed material was “totally hostile” to homosexuals and that the Borough would have treated a non-Christian who distributed similar literature in the same way.

2. In McFarlane v Relate Avon Limited (2010), Mr McFarlane, a Christian relationship counsellor, was dismissed because he did not feel that he could provide psycho-sexual counselling to same-sex couples as it conflicted with his religious beliefs.

The tribunal found that the employer’s legitimate aim was to provide a full range of counselling services to all sections of the community regardless of, among other things, their sexual orientation. It further considered that where an employee refuses to comply with principles that are fundamental to the employer’s aims (in this case, Relate’s equal opportunities policy) and which the employer has pledged to the public to maintain, the employer does not have to compromise those principles by making arrangements to accommodate an employee’s requests.

3. In Ladele v London Borough of Islington (2010), a Christian registrar refused to carry out civil partnership duties on behalf of Islington Council on the basis that same-sex relationships were against her religious beliefs. The Council dismissed her on the basis that it considered that her behaviour conflicted with its equality and diversity policy, and was discriminatory against the gay community.

The Employment Appeal Tribunal held that any other registrar who refused to carry out civil partnership duties for same sex relationships, whether it was connected to a religious belief or not, would also have been dismissed. Her religious belief was therefore irrelevant to the Council’s decision and her claim of direct discrimination therefore failed.

4. The issue has also arisen in the US in Peterson v Hewlett-Packard (2004), where the court held that Hewlett-Packard was justified in dismissing a worker for refusing to remove a poster with various biblical passages condemning homosexuality that he had put up in response to company posters welcoming gay employees.

What would happen if Mr Folau’s case was tried in the UK or US ? 

If Mr Folau’s case were to be determined by UK case law, or even in the US, it is likely that he would lose and that Rugby Australia would be found to have acted proportionately in achieving its legitimate aims, presumably being the aim of making rugby accessible and accommodating of all people in Australia. If this were to be a case decided on UK law, Rugby Australia’s decision would likely be considered to be entirely proportionate.

This author also considers that in his capacity as a role model to thousands of young rugby fans, Mr Folau’s actions will be subject to an enhanced level of responsibility and accountability for comments or behaviour that could be considered to be divisive; he is, of course, free to hold whatever opinions he wishes, but there was no legitimate reason for these to be communicated to the wider world via a social media post.

If you feel you have been unfairly treated due to your expressed religious beliefs or if you are an employer who has an issue with an employee expressing discriminatory religious beliefs and need advice please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966.