La liberta' religiosa nel rapporto di lavoro alla luce della recente giurisprudenza della Corte di Giustizia dell'Unione Europea
Giulia Cassano, Dottoranda di ricerca in Diritto del lavoro nell’Università degli Studi di Milano
Il contributo prende in esame la libertà religiosa sul luogo di lavoro alla luce della recente giurisprudenza della Corte di Giustizia dell’Unione Europea. In particolare, il caso Cresco Investigation offre l’occasione per investigare la relazione tra la normativa antidiscriminatoria basata sul fattore religioso e le festività religiose. Si deve infatti rilevare che i calendari ufficiali includono tra le feste nazionali le festività religiose rilevanti solo per alcune religioni (per ragioni storiche e culturali), mentre quelle di altre confessioni religiose non vengono in alcun modo prese in considerazione. Illustrata la problematica, si propone la regolazione di tali problematiche o da parte del legislatore o con accordi privati.
The present paper studies the freedom of religion in the workplace taking into consideration the latest case law of the CJEU. In particular, the Cresco Investigation case gives the chance to investigate the connection between anti-discrimination law on religious grounds and religious holidays. In fact, there can be some faiths that need to celebrate particular days – relevant for their religion – not taken into consideration by the official national calendar, for cultural and historical reason. The paper, therefore, aims to show the possible ways to face the issue, that can involve an intervention of national legislators or of the EU or can be regulated by private agreements.
Keywords: freedom of religion in the workplace – EU anti-discrimination law – official holidays calendar – religious holidays – reasonable accommodation on religious grounds.
1. The Cresco Investigation case and the freedom of religion in the workplace under European non-discrimination law - 2. The justifications to the principle of non-discrimination: Article 2(5) and 7 of the Directive 2000/78/EC - 3. The configurability of a right to reasonable accommodation on religious grounds - 4. Final remarks - NOTE
1. The Cresco Investigation case and the freedom of religion in the workplace under European non-discrimination law
The freedom of religion in the workplace is one of the most important issue of modern times, arisen as a result of the increasing multiculturalism, integration and migration in Europe . There are many situations in which religion and employment may intersect . The Court of Justice of the European Union (below “CJEU”) has ruled in several occasions recently about discrimination on religious grounds in the workplace, thus providing a fundamental guideline for the interpretation and the study of the matter (i.e. CJEU 14 March 2017, C-157/2015, Ahbita; CJEU 14 March 2017, C-188/2015, Bougnaoui; CJEU 17 April 2018, С-414/2016, Egenberger; CJEU 11 September 2018, C-68/2017, IR; CJEU 22 January 2019, C-193/2017, Cresco Investigation). The present paper focuses on the Cresco Investigation case (CJEU 22 January 2019, C-193/2017, Cresco Investigation)  and on the issues that it arises. This ruling offers the chance to explore the legal status of religious holidays in employment relationship and its connections with the EU anti-discrimination law . At a European level, the freedom of religion is granted in Article 10 of the Charter of Fundamental Rights of the European Union (below “CFR”), as a right that «includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and [continua ..]
2. The justifications to the principle of non-discrimination: Article 2(5) and 7 of the Directive 2000/78/EC
For what concerns the first perspective under which the Cresco Investigation case can be studied, the analysis of the exceptions to the principle of non-discrimination prescribed in Articles 2(5) and 7 of the Directive can be conducted following the steps of the CJEU in the decision of the case at issue. To begin, as already said, the Court of Justice of the European Union was required to rule on the compliance with the European anti-discrimination legislation of an Austrian legislation (below “ARG”) under which, first, Good Friday is a public holiday only for employees who are members of certain Christian churches and, second, only those employees are entitled, if required to work on that public holiday, to public holiday pay. In the decision-making process, the CJEU, firstly, established that such a legislation could give rise to a difference in treatment between comparable workers, directly based on the religion of employees. And this in view of the fact that the grant of a public holiday on Good Friday is subject only to the condition that such an employee must formally belong to one of those churches and not to the condition that the employee must perform a particular religious duty during that day, thus making this situation entirely comparable to the one of other employees who wish to have a rest or leisure period on Good Friday . Given that the Austrian legislation at issue has the effect of treating comparable situations differently on the [continua ..]
3. The configurability of a right to reasonable accommodation on religious grounds
After considering the Cresco Investigation case and the justifications to the principle of non-discrimination as examined by the CJEU, it is now necessary to refer to the concept of reasonable accommodation in order to investigate its relevance for the topic at issue. Reasonable accommodation is related to quest for substantive equality and to the concept of indirect discrimination . It is based on the fundamental observation that some individuals, because of an inherent characteristic (religion, for instance), face barriers to full participation in society . The right to reasonable accommodation was firstly recognised in Canada and in the United States , where it constituted a real obligation of the employer towards employees . It must be noted that, in these countries, the concept emerged in equality law precisely as a means of handling religious diversity and was then applied to other grounds of discrimination. For the development of the debate at a European level, it is worth mentioning that the jurisprudence of the European Court of Human Rights (below “ECHR”) on equality provided cases in which the device of reasonable accommodation has been at issue , even if the Court doesn’t have a favourable approach for its recognition. In the reasoning of the ECHR – and in the common understanding – the idea of reasonable accommodation is closely linked to a pluralist conception of religious freedom, [continua ..]
4. Final remarks
In conclusion, the issues related to the connections between the freedom of religion and the non-discrimination principle in the workplace are an emerging debate that will concern both national legislators and employers. The topic of the adjustment of the official calendar according to religious needs of workers members of minority confessions is only one of the problems that, in practice, employers and employees will face. Therefore, it seems relevant for interpreters investigating which could be the best device to give a legal framework to these situations and, in particular, whether the issue should be faced within the anti-discrimination law system or with the provision of a right to reasonable accommodation. The difference between the two presented perspectives is based on the above-mentioned different legal qualification of the non-discrimination principle and reasonable accommodation: the first is a limit to an employer’s power; the second is an effective right of the employee to demand an organizational change from the employer . This legal distinction brings with it an economic one, since the right to reasonable accommodation requires a greater effort by the employer than the compliance with the non-discrimination principle. Moreover, from a different side, a further point to consider is the question at what level is preferable to have a regulation of the topic, whether national, private or European. As demonstrated by the Cresco Investigation [continua ..]