Folau, a Christian, posted on Instagram that "hell awaits…..gay people". Rugby Australia subsequently terminated his contract of employment. Folau has taken them to Court seeking $10 million in damages and reinstatement at his former Club. His claim is for unlawful termination under the Australian Fair Work Act, which prohibits termination of employment for the reason of religion. The Australian Circuit Federal Court has encouraged the parties to settle through mediation until December, failing which the case will be heard in February 2020.
UK Cases
In the UK, the Equality Act 2010 makes it unlawful to discriminate against someone because of their religion or belief, or because of a lack of religion or belief. In addition, Article 9 of the European Convention on Human Rights provides a right to freedom of thought, conscience and religion. There have been a number of high profile UK cases concerning employees dismissed because of conduct they considered to be an expression of their religious beliefs which illustrate the conflict between the need to respect religious beliefs and the rights of others to equal treatment, dignity and respect.
Ladele v London Borough of Islington (2010) followed the introduction of civil partnerships in 2005. Ms Ladele was a Registrar for the Borough of Islington which required all its Registrars to carry out civil partnership ceremonies. Ms Ladele was unable to reconcile her religious beliefs with the new duty and refused. The Council threatened dismissal for failure to comply with its "dignity for all" policy. The Court of Appeal found the employer's treatment of Ms Ladele did not amount to religious discrimination. The case was subsequently taken to the European Court of Human Rights in Eweida & Others v UK (2013) which found there was no violation of Ms Ladele's human rights.
McFarlane v Relate Avon Ltd (2010). Mr McFarlane, a Christian relationship counsellor with Relate, was dismissed because he didn't feel he could provide psycho-sexual counselling to same sex couples as it conflicted with his religious beliefs. The Employment Appeal Tribunal's view was that where an employee refuses to comply with principles that are fundamental to an employer's ethos (in this case Relate's commitment to providing counselling on a non-discriminatory basis), the employer doesn't have to compromise its fundamental beliefs, for example by asking another employee to take on Mr McFarlane's duties.
Mackereth v The Department for Work & Pensions & Another decided at Tribunal on 2 October 2019 that a Christian doctor who claimed he was unfairly dismissed for refusing to address transgender individuals by their preferred pronoun, was not discriminated against on grounds of religious belief. The Tribunal found the doctor's views were incompatible with human dignity and conflicted with the fundamental rights of others so weren't protected religious or philosophical beliefs.
Another recent case has though highlighted further the complicated nature of religious discrimination claims. In De Groen v Gan Menachem Hendon Ltd (2019) the Employment Appeal Tribunal determined that a Jewish teacher at an ultra orthodox Jewish nursery school who refused to lie about living with her boyfriend was not discriminated against on grounds of religion or belief and that she had been dismissed because of her employer's belief that cohabitation was wrong not because of her own lack of belief. She was though successful with claims for direct discrimination on the grounds of sex.
Cases of religious discrimination outwith the employment context and in the area of service provision have also illustrated the complexity of religious discrimination cases. In Bute v Hall (2013) the Supreme Court rejected an attempt by the owners of a bed and breakfast to use their religious freedom as a justification for refusing a room to a gay couple. However, in the widely reported case of Lee v Ashers Baking Co Ltd (2018) the refusal of owners of a Northern Irish Bakery to make a cake with a slogan supporting same sex marriage was held not to be discriminatory because the refusal was not because of the sexual orientation of the customer, the objection being to the message on the cake not the customer's personal characteristics. The Supreme Court held that the bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. As such, there was no discrimination on the grounds of sexual orientation.
Conclusion
Employers need to be aware of the need to avoid discrimination and the difficult balance that has to be achieved between conflicting rights. Employers should carefully consider the scenarios in which an employee's conduct could breach their Company values and ensure that their policies and codes of conduct are clear about the standards required of their employees.
