Rugby Australia tackle Israel Folau’s social media posts

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Rugby Australia tackle Israel Folau’s social media posts

As World Cup excitement reaches fever pitch, Australian Rugby’s preparations have been somewhat overshadowed by the ongoing Izzy Folau saga. In April 2019, Israel Folau, one of Australia’s best and most celebrated players, made two posts on social media (one on Twitter, the other on Instagram) which World Rugby deemed to be so offensive as to constitute a serious breach of his player contract and the applicable code of conduct. His contract, reportedly worth $4million, was terminated as a result. The Guardian reports “The player’s dramatic sacking for posting religiously-inspired homophobic comments on social media was arguably the greatest distraction that a national rugby team has ever endured and while the Wallabies say they have moved on, few Australian players would have been untouched by the furore one way or another”.

Israel Folau’s legal team has now issued a 26 page statement of claim, in which he not only claims that the sanction imposed by World Rugby was overly harsh (and constitutes an unreasonable restraint on trade – an argument which is surely now undermined by the recent announcement that he will make a return to international rugby next month, playing for Tonga) but also that the posts upon which World Rugby relied upon to terminate his contract were not made “in the course of employment”.

Israel Folau is a “born again” Christian, who, avers that his particular denomination of Christianity requires him to share the word of God, with a view to converting as many people as possible to follow his faith. In his statement of claim, he sets out that since having been “born again” in 2017, he had used his social media accounts almost exclusively for this purpose. Whilst this is not mentioned in his statement of claim, it is of note that Israel Folau’s avatar on both Twitter and Instagram at the time the posts were made was an image of a number “1” made out of the words “God first”. Folau’s Instagram account has 362k followers, whilst his Twitter account has 135.5k followers at the time of writing.

Folau had been warned in 2018 about his conduct on social media by Rugby Australia’s CEO Despite this, in April 2019 Folau once again took to social media to express his views on the LGBT community. The first offending post was on Instragram, where Folau posted a picture with the words “warning – drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolaters – hell awaits you, repent! Only Jesus saves”. The second was a Twitter post (responding to pro-LGBT content) in which Folau states “the devil has blinded so many people in this world, REPENT and turn away from your evil ways. Turn to Jesus Christ who will set you free”.

Folau is seeking to argue that these comments, made on his personal social media accounts were not made in the course of employment. In the case of Forbes v LHR Airport, where an employee posted a picture of a golliwog on Facebook, the court noted that an employee may do all sorts of things outside the course of employment, such as chanting questionable slogans at a football match, which the employer might find unsavoury. However, in such circumstances, the employer would not have scope to punish that employee for those acts, as they took place outside the course of employment.

However: the recent judgment in the case of Page v NHS Development Authority (UKEAT, judgment handed down in June 2019) provides useful guidance at this point in relation to how Folau’s situation might be considered different to Ms Forbes. Mr Page was a non-executive director of an NHS Trust who held a strong belief (which he attributed to his Christian faith) that same-sex couples should not be permitted to adopt children. As well as being engaged by the NHS, Mr Page was a lay magistrate. He had “gone public” with his views after having been reprimanded by the Lord Chancellor and Lord Chief Justice for having been “influenced by his religious beliefs and not the evidence” in his role as a magistrate. After going public, the Trust received numerous complaints and warned Mr Page that he must not contact the media in relation to his views without first notifying the Trust. Despite this, Mr Page participated in a televised, BBC Breakfast interview, in which he expressed the view that adoption by a same-sex couple can’t ever be in the best interests of the child. The Trust suspended Mr Page, and then decided not to renew his NED contract.

The EAT agreed with the Tribunal’s findings that the Trust had not treated Mr Page in the way that it did because of his beliefs, but rather the way in which he had expressed those beliefs, despite being warned, and despite knowing that speaking to the media was likely to have an adverse effect on the Trust’s ability to engage with the community.

The argument was not specifically put forward in the Page case, but on the face of it, Mr Page had not made his comments to the media “in the course of employment”. However, because of his particular position, influence, and the very public arena that he chose to express his views the termination of his contract was deemed fair.

In Israel Folau’s case, it seems likely the Rugby Australia could put forward similar arguments to support their position that despite the posts having not been made “in the course of employment” on a strict construction, they nonetheless had a catastrophic impact on the employment relationship, because of the very public nature of the comments which could alienate whole swathes of fans, let alone players, and the fact that they had been made despite Rugby Australia having warned Folau about posting on social media previously.

In both the Folau and Page cases, the employer is likely to be able to rely on the fact that they had previously warned their employee that their conduct is unacceptable. However, in circumstances where previous warnings are not in place, an employer may nonetheless want to discipline, if not dismiss, an employee for comments on social media. In order to do this, it’s important that employees are made acutely aware of the standards of behaviour expected of them, and the easiest way to do this is to have a robust social media policy in place. If you would like to discuss your social media policy, or wider company policies, please get in touch with our employment team.

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