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Religious Freedom vs Foul Play

Monday, June 17, 2019

Israel Folau is an Australian rugby player who found himself sacked as a result of an Instagram post in May which caused uproar and breached Rugby Australia’s code of conduct.

Folau’s post had his $4m rugby employment contract terminated, because of its offensive comments– here’s the full text
“hell awaits drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”.

The Instagram posts were deemed a high-level breach of Rugby Australia’s code of conduct having previously warned not to denigrate people on the basis of their sexuality.

Folau is claiming unlawful termination on the basis of religion under the Fair Work Act.

The heat of this dispute was turned up when Folau commenced a Crowdfunding appeal to help pay his legal fees. His opponents claimed the move a cynical play to garner sympathy from religious groups however it was proving successful in raising over $2m of the target $3m in only a few days, before being taken down. The collective view from the lawyers commenting on the case suggests the maximum likely costs would be less than $500k and only then if the highest charging lawyers in Australia were appointed.

The matter is expected to go to mediation as the case has proved a PR disaster for the sport, splitting opinion and driving a conversation about an entirely negative topic not the positives of the game.

But what if something similar were to happen in the UK?

The Equality Act 2010 goes some way to protect the rights of employees to discuss their beliefs however this should not be at the risk of discriminating or denigrating another group included within the clearly set out protected characteristics.

Protected Characteristics: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity.

Talking about religion or belief at work

An employer should not try to ban discussion of religion or belief at work. However, an employer may be able to justify some restrictions for reasons such as:

  • protecting the rights of others
  • protecting the firm’s reputation
  • preventing a figure of authority forcing their personal views on others – for example, an executive on a junior employee, a teacher on a pupil or doctor on a patient.
  • In light of the Folau case it is essential that an employer has a policy on what use of social media is acceptable or unacceptable at work and away from the workplace when the use may still be connected to the employer in some way. This includes views on religion or belief.
  • In conclusion if he matter occurred in the UK it is likely that a tribunal would see Mr Folau’s remarks on Instagram as being in direct breach of the Equality Act. Article 9. of the Human Rights Act refers to freedom of religion or belief but essentially qualifies such freedoms.
  • Article 9 is a qualified right – meaning the freedom to manifest a religion or belief can be limited, so long as that limitation:
  • is set out in law
  • is necessary and proportionate, and
  • pursues a legitimate aim, namely:
  • the interests of public safety
  • the protection of public order, health or morals, or o the protection of others’ rights and freedoms.

The final point in the Folau case is clearly a breach and again suggests a UK Tribunal would uphold the position of the Rugby Association. With such strong feelings on either side the suggestion of mediation is sensible albeit there’s as yet no sign of each side compromising their positions.


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