Australian rugby star claims religious discrimination in Instagram dispute

The case is interesting because it concerns the potential conflict between an individual's right to freedom of religion, and laws protecting against discrimination on the basis of sexual orientation. This conflict has been the feature of a series of high profile cases in the UK concerning employees who were dismissed because of conduct they attributed to their religious belief.

Folau, an Australian rugby player and self-described devout Christian, posted on his Instagram page on 10 April 2019 that hell awaits "drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolaters". Rugby Australia subsequently announced that Folau's comments breached its code of conduct, and that it would terminate his four-year contract of employment, purportedly worth A$4 million. Rugby Australia had previously spoken to Folau about similar behaviour on Instagram in 2018.

The parties failed to reach a settlement at conciliation last month before the Fair Work Commission, and Folau is now likely to commence proceedings in the Federal Court in the near future. Folau's claim is for unlawful termination under section 772 of the Fair Work Act, which prohibits the termination of employment for the reason of religion. It is reported that Folau may be seeking damages of up to A$10m.

Was Folau dismissed because of his religious beliefs?

All Australian states and territories prohibit by legislation discrimination on the basis of some form of religious belief or activity, except New South Wales (NSW) and South Australia - although South Australia prohibits discrimination due to religious appearance or dress. While no federal religious discrimination act currently exists, the Fair Work Act protects against termination or adverse action being taken against an employee on the basis of religion.

The central question in the Folau case is whether Rugby Australia dismissed Folau for the reason of religion. However, Rugby Australia may argue that Folau was not terminated because of his religion, but because he:

• breached his contract of employment by failing to comply with Rugby Australia's code of conduct; and
• breached his duty as an employee to obey the lawful, reasonable instructions of Rugby Australia.

Rugby Australia's code of conduct prohibits behaviour or conduct which may cause "offence to the general public's sensibilities" and which may "cause reputational damage to Rugby Australia". Rugby Australia may also raise the fact that Folau had been warned previously following his 2018 Instagram post.

Folau is expected to argue that his Instagram post was clearly an expression of his religion and religious beliefs and that he was dismissed because of it, in contravention of s772 of the Fair Work Act.

The matter is further complicated by the fact that s772 contains an "inherent requirements" defence. For example, this would provide a defence to an employer who dismissed a barista who refused to make coffees because he claimed his religion prohibited it. Here, the dismissal would clearly be attributable to a failure on the part of the employee to meet the inherent requirements of the position.

In relation to Folau, Rugby Australia might argue that even if it did dismiss him because of his religion, it was an inherent requirement of his position as an athlete representing a national sports team - being more well known to the public than the average employee - that he did not post content on social media which could cause reputational damage to Rugby Australia or risk its sponsorships.

The question of religious freedom is a hot topic in Australia at the moment, with the federal government announcing that it will seek to introduce legislation religious discrimination bill to parliament this month. Separately, the Australian Law Reform Commission is undertaking a review into the framework of religious exemptions in current anti-discrimination legislation across Australia, and is due to report its findings in April 2020.

Religious discrimination law in the UK

The conflict between the rights of the individual to freedom of religion and laws protecting against discrimination on the basis of sexual orientation has been a feature of a series of high profile cases in the UK concerning employees who were dismissed because of conduct that they attributed to religious belief.

The leading case, which dates back to 2010, concerned a registrar who was threatened with dismissal when she refused to conduct civil partnership services because of her belief that same sex unions were contrary to her Christian faith. The registrar, Lillian Ladele, failed in her claim for religious discrimination. The Court of Appeal held that the reason for her treatment was not her religious belief, but her refusal to carry out her duties.

The Court of Appeal also ruled that Ladele's right to freedom of thought, belief and religion under article 9 of the UK Human Rights Act did not override the employer's legitimate aim to ensure that services were provided in a non-discriminatory way to both homosexual and heterosexual communities. Similar decisions have been reached in other cases. In general, the courts recognise that UK law protects the manifestation of a religious belief, but the law does not protect the inappropriate promotion of that belief in an employment context.

How should employers deal with expressions of religious belief?

Employers need to think carefully about the scenarios in which an employee's conduct could breach the company's values or affect the company's reputation, and identify what rules they need to set accordingly. If the rules are clear, this may leave less room for arguments that discipline or dismissal relates to a personal characteristic of the employee such as religious belief.

As is so often the case, it is essential for employers to ensure that their policies and codes of conduct fully express and capture the standards required of their employees.

In the age of social media, it is particularly important to have a clear and specific social media policy that clarifies exactly what employees can and cannot post about. That said, social media policies should avoid unnecessarily regulating the private activities of employees outside working hours unless there is a real and relevant connection between those private activities and the employment relationship.

Katie Williams and Patrick Williams are employment law experts at Pinsent Masons, the law firm behind Out-Law.