When Israel Folau made his now-infamously homophobic social media posts, few could have expected that we would end up here. Indeed, few expected Rugby Australia to do more than hand him a fine and perhaps a suspension. Yet, here we are: Rugby Australia have terminated his $4million playing contract and now Folau has launched a legal challenge, claiming a rumoured $10million in damages. Rugby Australia should be applauded for the strong stance that they have taken in defence of rugby’s values of inclusivity and diversity, and of the LGBT+ community, but the question on everybody’s lips now is whether they have acted lawfully.

This article will seek to give an English legal perspective on the case; to examine the way in which English employment law would respond, and to suggest how sporting employers, or sports governing bodies, might handle a similar scenario were it to arise in the English jurisdiction. This article does not set out to provide an analysis of the Australian laws which will apply in Folau’s case.

It will be argued that, in English law, Folau’s legal challenge would be unlikely to succeed and that his dismissal was perfectly lawful and non-discriminatory.

The Facts

On 10 April 2019, Wallabies and NSW Waratahs full-back Israel Folau posted on Instagram that “hell awaits…drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters.” This followed earlier controversial social media comments, to similar effect, in the 2017-18 season. Though he was formally warned then, he escaped further sanction. Interestingly, Folau said in April 2018 that he would “would walk away from [his] contract, immediately” if Rugby Australia considered his position untenable. How times change.

On 15 April 2019, Rugby Australia announced that Folau had been served with a “breach notice” over the posts after the Rugby Australia Integrity Unit considered the player to have committed a “high-level breach” of the Professional Players’ Code of Conduct which warranted termination of his employment contract. They gave him the opportunity to refer the matter to a ‘Code of Conduct hearing’, which he duly took.

Between 4 and 7 May 2019, a panel of John West QC, Kate Eastman SC and John Boultee AM presided over the hearing, at which Folau was legally represented and was able to put his case against the termination of his contract. On 7 May, the panel gave judgment confirming that the player had indeed committed a high-level breach before hearing further submissions on the appropriate sanction. On 17 May, the panel found that termination was appropriate and, after the 72-hour appeal window passed, Rugby Australia confirmed that Folau’s contract had been terminated.

On 6 June 2019, Folau launched legal action against Rugby Australia, claiming that his contract had been unlawfully terminated. He stated: “No Australian of any faith should be fired for practising their religion”. The case, which has already dragged on, looks set to be drawn out further. It is an unhelpful distraction for Australian rugby in a World Cup year, at a time when the sport down-under is already struggling. In truth, the legal battle is only just beginning.

The Law

In English legal terms, Folau’s case would rest upon the bases of wrongful dismissal, unfair dismissal and discrimination. He would be claiming that not only had he been wrongfully and unfairly dismissed, but that he had also been discriminated against because of his religious beliefs. Each will be considered in turn.

Employment Status

A preliminary issues worth addressing is that of Folau’s employment status. Claims for wrongful or unfair dismissal and discrimination are only available to “employees”. This is an area of English law fraught with complexity and uncertainty, but also great interest. What matters for these purposes is that Folau works under a contract of employment. This is not in doubt: almost all elite professional rugby players will work under fixed-term employment contracts. The interesting point here is the identity of his employer.

Unlike in England, for example, where (male) players are contracted by their clubs rather than the RFU, Australia has a system of centrally contracting its top players. These contracts tie them to Australian rugby and to a Super Rugby team. It is not entirely clear how they work but it appears that Rugby Australia and the Super Rugby team are ‘joint employers’. English law does not have a general doctrine of ‘joint employment’ but where parties explicitly provide in the contract that there will be more than one employer, there is no reason why this wouldn’t be recognised by the courts – as long as it reflects the reality of the relationship (Autoclenz Ltd v Belcher [2011]).

This is an unusual position for a sports governing body to find itself in – as the recent Jess Varnish case demonstrates – and the potential consequences serve to highlight the additional burdens which central contracting may impose.

In Folau’s case, though Rugby Australia has taken responsibility for handling his dismissal – unsurprisingly, given they are the national governing body – the Waratahs, too, may be liable depending on the precise nature of the arrangement between the parties.

The Wrongful Dismissal Claim

At common law, an employer’s right to dismiss employees is largely unconstrained. If an employee commits a repudiatory breach of contract – where they breach an essential term of the contract – an employer is entitled to dismiss them summarily (i.e. without notice), following Laws v London Chronicle [1959] 1 WLR 698. ‘Gross misconduct’ justifies summary dismissal (Neary v Dean of Westminster [1999] IRLR 288), where mutual trust and confidence is undermined (Sinclair v Neighbour [1967] 2 QB 279). If the employee’s conduct is not sufficiently serious, employers are nonetheless entitled to dismiss, provided that they give the employee an adequate notice period (Hill v CA Parsons [1972] Ch 305). Under a fixed-term contract, the ‘notice period’ is the remainder of the fixed term – an employer cannot terminate the contract early unless the employee has already repudiated (Reda v Flag Ltd [2002]).

An employee who has been wrongfully dismissed – i.e. unjustifiably summarily dismissed or given insufficient notice – can bring a court claim for damages. Damages are available for the notice period they should have been given to be dismissed lawfully, or the unexpired fixed term (Alexander v STC Ltd (No.2) [1991] IRLR 287). It is a purely financial remedy; no damages are available for injury to feelings (Johnson v Unisys [2001])

Was Folau Wrongfully Dismissed?

Given that Folau has been summarily dismissed, albeit following a disciplinary hearing, the question is whether this was justified. Does making homophobic posts on social media amount to gross misconduct?

The court in Neary v Dean of Westminster held that this is a question of fact to be determined by reference to employer’s characteristics, the role of the employee and the degree of trust and confidence required by their relationship. As the national governing body, Rugby Australia has an important role to play in publicly upholding high standards of behaviour, and to ensure that the sport of rugby union remains inclusive and non-discriminatory. Folau, as a high-profile Wallaby, with over 360,000 Instagram followers, has an integral role in upholding the sport’s public image and, indeed, was under specific obligations to do so in the Code of Conduct (Part 2.1):

“1.6 Do not…make any public comment that would likely be detrimental to the best interests, image and welfare of the Game, a team, a club, a competition or Union.

1.7 Use Social Media appropriately…do not use Social Media as a means to breach any of the expectations and requirements of you as a player contained in this Code or in any Union, club or competition rules and regulations.

1.8 Do not otherwise act in a way that may adversely affect or reflect on, or bring you, your team, club, Rugby Body or Rugby into disrepute or discredit…”

More pertinently still, Folau was under the specific obligation to:

“1.3 Treat everyone equally, fairly and with dignity regardless of…sexual orientation… Any form of bullying, harassment or discrimination has no place in Rugby.”

A large degree of trust and confidence is thus required.

In light of the above, posting homophobic remarks on social media undoubtedly amounts to ‘gross misconduct’. Some might argue that what he said was not explicitly hurtful, as only those who are as devoutly Christian as Folau himself would be troubled by the assertion that they would go to ‘hell’, and that spreading religious beliefs should not be considered ‘misconduct’. However, this would be to miss the point.

Rhetoric such as that which Folau is spreading is the foundation of prejudice towards homosexuals and the LGBT+ community in modern society. It is archaic views about the way the world should be, derived from orthodox religious teachings which are the root of homophobia. To spread such views is to spread and to further entrench prejudice, hate and discrimination against people who have no choice about who they are and who they love. In the same way that racist beliefs inspired by certain religious sects have been widely condemned throughout recent history, so must homophobia be. Sexual orientation, like race, is an immutable characteristic. Folau’s views are antithetical to the values of rugby union and the values of Rugby Australia and are thus, in my view, rightly to be considered ‘gross misconduct’, regardless of the wording of his contract.

Of course, many employees’ social media accounts will not reflect on, nor be of interest to, their employers. In Smith v Trafford Housing Trust [2012], for example, an employer was found to be in breach of contract for sanctioning an employee for homophobic comments he had made on Facebook, as it was held that no “reasonable reader of Mr Smith’s Facebook wall page could rationally conclude that his two postings…were made in any relevant sense on the Trust’s behalf”. By contrast, Folau is necessarily a public figure. What he posts on social media does reflect on his employer and is thus liable to affect his employment contract.

Moreover, the Code of Conduct – which Rugby Australia would argue is an essential term of his contract – lays out clear and precise obligations regarding both social media use and discrimination, which Folau has repeatedly breached. The wording of clause 1.3 (above), referring to “any form of…discrimination” is broad enough to include views which tend to discriminate, and “treat[ing] everyone equally” must extend to material posted on social media by virtue of clause 1.7. What’s more, following Pepper v Webb [1969] 1 WLR 514, the ‘last straw’ doctrine applies – even if the most recent post wasn’t enough on its own, the combined effect of his various outbursts will justify his summary dismissal.

The Code of Conduct panel’s decision was correct. A claim for wrongful dismissal would fail.

Breach of An Express Procedural Term?

Given that summary dismissal appears justified, Folau might instead wish to argue that he was wrongfully dismissed because of flaws in the disciplinary hearing procedure expressly set out in the Code of Conduct. However, following the House of Lords and Supreme Court decisions in Johnson v Unisys and Edwards v Chesterfield [2011], damages will be unavailable for such a breach. Though many consider this point to have been wrongly decided, this is not the place to consider whether reform is desirable. Even if Folau could establish a breach of the Code of Conduct hearing procedure (Annex. 1), he would be unable to claim damages.

The Unfair Dismissal Claim

However, this is only the common law position. Employers come under further obligations by virtue of the statutory unfair dismissal regime in Part X of the ERA 1996. As s.94(1) of the Act states: “An employee has the right not to be unfairly dismissed by his employer”, though only if they have been in continuous employment (by the employer) for the preceding two years (s.108(1)). Having been under various consecutive fixed-term contracts with Rugby Australia, including deals from June 2015 to 2018 and from October 2018 to May 2019, Folau would have the necessary qualifying period. It is possible for an employee to be dismissed lawfully at common law, but to nonetheless have been unfairly dismissed under statute, and thus have a claim in the Employment Tribunal.

For a dismissal to be fair, the employer must be able to prove the reason for the dismissal. It must not be one of the ‘automatically unfair’ reasons in ss.99-105 and, instead, the reason must be one of the ‘potentially fair’ reasons within s.98(2) – capability, qualification, conduct, redundancy or illegality – or “some other substantial reason” (s.98(1)(b)). The fairness of the dismissal, according to s.98(4), is then determined by considering the reasonableness of the decision to treat the above reason as sufficient to dismiss in all of the circumstances. Following cases such as Iceland v Jones [1982] and Kent v Gilham (No.2) [1985] ICR 233, the relevant test is the ‘range of reasonable responses test’, which essentially asks whether any reasonable employer could have come to the decision, and comprises a substantive and procedural element (Polkey v Dayton Services Ltd [1987]).

The range test is incredibly deferential to employers, as Davies has noted, and, in reality, dismissals are far more likely to be found procedurally unfair than substantively – tribunals are reluctant to interfere with an employer’s decision to dismiss. The intensity of review is thus very low.

If a dismissal is found to be unfair, the remedies available are reinstatement, re-engagement, or compensation (s.112). The latter, by virtue of the courts’ interpretation, is the predominant remedy in practice and comprises the ‘basic’ and ‘compensatory’ awards. The basic award reflects the fact of the unfair dismissal, and the compensatory award makes up for losses incurred. Again, this is purely for financial losses, but goes beyond the common law regime, allowing recovery for consequential losses, including the inability to find other employment (which may be significant in Folau’s case). However, this compensation is subject to a statutory cap – £15,240 for the basic award and £83,682 for the compensatory award (ss.118-124).

Was Folau Unfairly Dismissed?

Rugby Australia would argue that the sole reason for Folau’s dismissal was his “conduct” (s.98(2)(b)). Thomson v Alloa Motor Company Ltd [1983] IRLR 403 makes clear that the conduct in question must be linked to the duties of the employee in the employment relationship and, though Folau might try to argue that he was acting in a purely private capacity on his Instagram account, the above analysis regarding the player’s public role, as well as the Code of Conduct obligations, suggests that such an argument would be futile. Social media posts by a professional sportsperson will amount to “conduct” for the purposes of the unfair dismissal regime.

The key issue for the unfair dismissal claim is whether it was reasonable. As explained above, it is relatively rare for dismissals to be considered substantively unfair. The test is not whether the dismissal was a ‘proportionate’ response, but whether any reasonable employer might have decided to dismiss in the circumstances. The answer to that question will inevitably be ‘yes’, particularly given the potential damage that his actions might cause to Rugby Australia, Folau’s earlier warning, and the fact that the player has shown no remorse nor attempted to apologise.

Instead, Folau might seek to challenge the procedure taken by Rugby Australia. On the face of it, Rugby Australia have followed appropriate procedure by the book: they consulted with the player, considered the appropriate cause of action, notified him of a breach and of his opportunity to have the matter referred to a disciplinary hearing. He was then given a hearing with an independent panel and then the opportunity to appeal the panel’s decision, though he declined to do so. This is perfectly in line with the ACAS Code of Practice for employers in the UK.

In ordinary cases an employee might be able to complain about the way that the process has been carried out so publicly but, given the nature of the employment relationship in question it is suggested that this concern would be misplaced. Indeed, in the interests of good sports governance, Rugby Australia should be applauded for the transparency with which they have conducted the entire process.

However, Folau has since alleged that Rugby Australia has breached its confidentiality duty by leaking information about the hearing to the media, describing the situation as “blatantly unfair”. It may be that the disclosure of information revealed in confidence could make the procedure ‘unfair’. However, Rugby Australia has denied the allegations, stating:

“Rugby Australia has acted with complete professionalism and integrity at all times through the process in which Mr Folau was found by an independent three-member tribunal panel to have made multiple, serious breaches of the Professional Players Code of Conduct.”

Whether there is any truth in Folau’s accusations remains to be seen.

An alternative ground of challenge might be that of ‘predetermination’. Folau might argue that the panel had already made up their mind that his conduct warranted dismissal and that this amounts to a breach of “procedural fairness” (as required by Annex. 1.1.1 of the Code of Conduct). Given that the panel was made up of individuals independent from Rugby Australia and that, objectively, his conduct justifies dismissal it will be difficult to prove this.

Without knowing the intimate details of the hearing itself, it is difficult to see Folau’s case succeeding on procedural grounds. An unfair dismissal claim is unlikely to succeed.

The Discrimination Claim

The final, and perhaps most interesting, element of Folau’s claim would, in English law, be that his dismissal was discriminatory under the Equality Act 2010 (EA 2010). S.39(2)(c) EA 2010 states that an employer may not discriminate against an employee by dismissing them. Discrimination may be either direct (s.13) or indirect (s.19). Direct discrimination is where an employer treats the employee less favourably than he treats, or would treat, others because of a protected characteristic. By contrast, indirect discrimination is where a provision, criteria or practice (“PCP”) is applied to all employees equally but where those with a protected characteristic suffer a particular disadvantage, and the PCP cannot be justified as a proportionate means of achieving a legitimate aim. Under s.10 EA 2010, both religion and religious belief are classed as ‘protected characteristics’.

Unlike in unfair dismissal, there is no statutory cap on compensation for discrimination claims. Thus, if a dismissal is found to be discriminatory under the EA 2010, the rigours of the ERA 1996 can largely be avoided, and substantial compensation may be available (s.124). That said, claimants still tend to bring both claims given the availability of the ‘basic award’ for unfair dismissal which effectively guarantees a certain amount of compensation – damages under the EA 2010 are more variable.

Direct or Indirect Discrimination?

One of the key questions in any discrimination claim is whether the case is one of direct or indirect discrimination. The distinction is important, as indirect discrimination can be objectively justified, while direct discrimination cannot.

On one hand, Folau would argue that he has been directly discriminated against: he has been dismissed because of his religious belief – the belief that homosexuals will go to hell unless they repent. He would argue that the dismissal was squarely because of that belief, and no other reason – and thus cannot be objectively justified.

On the other hand, Rugby Australia would argue that it is merely a case of potential indirect discrimination: Folau was dismissed for breaching the Code of Conduct in a serious and persistent manner. They would argue that any player, regardless of their religion or beliefs, would be dismissed for such a breach, and thus there can be no direct discrimination. Inevitably, those with Folau’s religious beliefs will suffer a particular disadvantage as a result of this practice, as they are more likely to fall foul of it – the policy, though neutral, conflicts with their beliefs. This, it is submitted, is the better view. Folau was not dismissed because of his religion or belief per se, but because of ‘misconduct’ under the Code. At best, this may be indirectly discriminatory (if it cannot be justified).

What is Folau’s Protected Characteristic?

As noted above, s.10 EA 2010 protects “religion or belief”. Which is in issue here? And does it matter?

English law in this area is heavily influenced by jurisprudence of the European Court of Human Rights (ECtHR) on Art.9 of the European Convention of Human Rights (ECHR) – the right to freedom of thought, conscience and religion.

Christianity, in its various forms, is readily recognised as a religion (X v UK (1976)) which will be protected under the EA 2010. Religious beliefs, however, are subjected to more scrutiny before they are protected. Following Campbell and Cosans v UK (1982), the belief must have a certain level of cogency, seriousness, cohesion and importance, must be worthy of belief in a democratic society and must not be incompatible with human dignity. Though some would doubt whether beliefs like those of Folau should satisfy this test, it is likely that a court would find that they do, particularly in light of Eweida v UK (2013), where the protection of such beliefs was accepted by the parties and the ECtHR itself. As the court in Eweida stated, “a healthy democratic society needs to tolerate and sustain pluralism and diversity”. Though many have disputed this approach (McColgan and Norrie (Juridical Review, 2019(1), 88-95), for example), deeply held religious beliefs are protected by law. Thus, it is unlikely to make much of a difference whether the characteristic is considered to be religion generally or the specific belief itself.

Would Folau Be Protected?

However, the protection accorded to religious beliefs is not unqualified. The ECtHR in Eweida, following cases such as Kalac v Turkey (1999), emphasised the important distinction in Art.9 ECHR between holding a belief and manifesting a belief. Though holding a religious belief is an absolute fundamental right, manifestation of that belief is qualified. The manifestation of religious beliefs may thus be restricted to protect the rights and freedoms of others, as Lady Hale confirmed in Hall v Bull [2013], as long as any such restriction is proportionate. As Fenton-Glynn has so aptly put it:

“in a commercial context, there is no right to manifest religious beliefs where they have an adverse impact on a protected characteristic of another. Individuals are free to think and believe as they like, but once they manifest those thoughts and beliefs in actions in the public sphere, they may be subject to limitations to protect the rights of others. This is not to preference one group over another, but to ensure that we can live in a society where all individuals are treated equally regardless of the colour of their skin, their sexual orientation, or indeed, their religion.”

This has been exemplified by several English cases, including those which were conjoinedly appealed to the ECtHR in Eweida. In Ladele v Islington LBC [2009], a registrar was disciplined and threatened with dismissal after refusing to carry out civil partnership ceremonies for same-sex couples on the grounds of her religious beliefs. At first instance, the Employment Tribunal found that the registrar had been directly and indirectly discriminated against. However, on appeal, it was held that there was no direct discrimination, as any employee refusing to carry out their duties would have been subjected to the same treatment, regardless of their beliefs. Moreover, the Employment Appeal Tribunal found that any potential indirect discrimination was justified, as it was a legitimate aim for the employer to want to provide a non-discriminatory service, and the action taken had been proportionate. This was affirmed by the Court of Appeal and by the ECtHR.

Likewise, In McFarlane v Relate Avon Ltd [2010], the Christian claimant was a counsellor who was dismissed after refusing to counsel same-sex couples. His discrimination claim failed on the same grounds as Ladele: where an employer has an aim of providing services without discrimination, it “may properly insist on all employees participating in the services in question, even if to do so is in conflict with their religious beliefs”.

When Israel Folau made his social media post, he was undoubtedly manifesting his religious beliefs. Indeed, he was arguably proselytising them. Unlike the cases of Ladele and McFarlane, Folau has not refused to provide a service to those who conflict with his beliefs. However, in his position as a high-profile international sportsman – perhaps the most well-known Australian rugby player of his generation – his conduct is of similar effect. His statements in a public forum, in which he is an ambassador for his employers and his sport as a whole, have the effect of portraying Australian rugby as unwelcoming to homosexuals. His beliefs are, in themselves, undeniably discriminatory and, as explained above, are liable to spread prejudice and hate. What’s more, they conflict explicitly with his employer’s Code of Conduct. Rugby Australia’s decision to dismiss him undoubtedly pursues a legitimate aim: defending equality within Australian rugby.

The only question which remains is whether dismissal was a proportionate means of achieving this legitimate aim. Following Homer v Chief Constable of West Yorkshire Police [2012], the test of proportionality in English law is merely one of ‘reasonable necessity’. Was dismissal reasonably necessary in order to protect Rugby Australia’s values, and the interests of its members? In light of the decision in McFarlane, Folau’s lack of remorse or apology, the fact that he has still not deleted the Instagram post in question and that this is the second time he has made such comments publicly, the answer to that question must be yes. His dismissal was a proportionate means of pursuing a legitimate aim and thus was not indirectly discriminatory.

Any discrimination claim would thus fail.

Conclusion

The long and short of it is that, in English law, at least, Israel Folau would have no leg to stand on. His best attempt at making a challenge would be down the procedural avenue of unfair dismissal but even that appears doubtful, in the absence of some serious failing by Rugby Australia behind closed doors.

The key points are thus:

(i) Folau’s misconduct justified his summary dismissal at common law.

(ii) Rugby Australia’s decision to dismiss him by virtue of this conduct was substantively fair and, without compelling evidence to the contrary, appears to have been fair procedurally, too.

(iii) Folau was dismissed because of his conduct, not his religious beliefs, in the same way that any non-religious employee making homophobic remarks would have been. His dismissal was therefore not directly discriminatory.

(iv) Any possible claim of indirect discrimination will be defeated by the fact that the dismissal was a proportionate means of achieving the legitimate aim of eliminating discrimination against homosexuals and defending equality within Australian rugby. The manifestation of religious beliefs will only be protected insofar as they are not harmful to the rights of others.

(v) English law would thus consider Rugby Australia to have acted lawfully.

It is hoped that the Australian courts will give similarly short thrift to Folau’s case.

This is a case which provides many lessons for professional sportspeople on the way in which they must conduct themselves on social media, particularly those from religious backgrounds, and is instructive as to the role of international unions which adopt a central contracting model.

Rugby Australia must continue its bold approach and defend its case rigorously to uphold not only its own integrity but the rights of LGBT+ people in Australia. At the start of ‘Pride Month’ 2019, the values extolled by Australian rugby’s governing body should be championed and should be followed throughout sport the world over.