Il saggio analizza la rilevanza assunta dalla Religione nel Diritto del lavoro e, in particolare, la crescente conflittualità che emerge, anche a livello di contrattazione collettiva, tra i precetti religiosi e l’integrale rispetto della normativa prevenzionistica posta a tutela della salute e sicurezza dei lavoratori. Segue l’approfondimento dell’ampia giurisprudenza sviluppatasi a livello internazionale e comunitario in funzione antidiscriminatoria e della sua possibile applicazione nell’ordinamento italiano.

SOMMARIO:

1. The dichotomy between Religion and (Labour) Law: a current problem - 2. Religious precepts before health and safety at work: the Italian scenario - 3. Historically relevant religious practices: examples of conflict and (possible) resolutions in health and safety legislation - 4. Collective bargaining, reasonable adjustments and freedom of worship: limits and opportunities - 5. Conclusions - NOTE

1. The dichotomy between Religion and (Labour) Law: a current problem

Law is the locus where different cultures of work, based on different histories, traditions and ideologies, find ground for confrontation, not infrequently for conflict and, occasionally, reconciliation. This can happen in the case of contrast between fundamental rights equally protected by the Constitution and when the “reciprocal integration” of the values at stake makes it necessary to reach a reasonable balance in order to avoid “the unlimited expansion of one of the two rights, which would become a ‘tyrant’ towards the other constitutionally recognized and protected juridical situations” [1]. This situation affects Religion, which, erroneously considered a “cultural” variable whose influence is in decline in a Eurocentric perspective, instead plays a central role in the dynamics of social and economic development, impacting both company activities and worker interests [2]. Given the variety of religious precepts that can be identified in an increasingly fluid, multicultural and fragmented society, and the equally extended interpretation – for identity purpose – of the so-called “new rights” linked to citizenship, integration of foreigners and civil coexistence [3], religion has been a motivating factor in a significant number of labor law disputes (e.g. clothing required in the workplace, limits on access to employment, regulation of working hours, permits and holidays, etc.) [4]. Despite the numerous claims that have already emerged (especially in terms of anti-discrimination), the growing socio-cultural pluralism makes it necessary to consider the Religion-Law (also, Labor Law) dichotomy as a persistently current problem [5] that can bring to the surface contrast profiles that were unthinkable up until a few years ago. An example is the relationship between religion, health and safety at work in relation to which, when confronted with situations of potential conflict, it becomes of the essence to understand whether and to what extent it is possible to reconcile accident prevention legislation with freedom of worship, envisaging equal treatment before the law without any distinction of religion and the right for all to profess their faith freely in any form, propagate it and worship in public (except for rites contrary to public mores). What is certain is that the traditional Religion-Law relationship models – based on the assumption of the [continua ..]

2. Religious precepts before health and safety at work: the Italian scenario

In Italy, the protection of health and safety in the workplace is legally based in the Constitution, which recognizes health as a fundamental right of every individual (Art. 32 of the Constitution) [6], imposing private economic initiatives, equally free and protected, to develop without harming human safety and dignity (Art. 41, par. 2, of the Constitution). In this regard, the general obligation to the charge of the employer to guarantee safety (also in terms of “moral personality”) in the workplace pursuant to Art. 2087 of the Civil Code applies along with any more specific provisions envisaged by Legislative Decree no. 81 of 9 April 2008 (and other sector-specific regulations) with a view to implementing – through “the necessary set of provisions or measures also according to the specific nature of the occupation, experience and expertise” – an effective “prevention-based organization” in the workplace that is effective in preventing or reducing the risks of accidents and occupational illnesses. On the other hand, freedom of religion includes the freedom to practice and express one’s worship, ensuring – as far as is relevant here – the protection, in private and in public, of those behaviors considered to be the expression of religious duties [7]. In this perspective, the religious precepts that directly or indirectly prohibit certain behaviors or the use of specific goods represent ‘obligations’ for the worshipper [8]. These “obligations”, in fact, do not limit their influence to extra-work conduct alone, but can either operate as independent risk variables (eg. stress and work-related factors) or represent an obstacle to the complete and correct application of prevention and protection measures provided for by law or identified by the employer [9]. Yet, Legislative Decree no. 81/2008 does not include any explicit reference to “religion” and the religious factor is never expressly mentioned, both in relation to the political-institutional coordination system of the regulation and in relation to the rights and duties of the individual figures responsible for safety and, finally, in relation to the organizational activities aimed at preventing accidents and occupational illnesses mentioned therein (both in the text and in the relevant annexes). In other words, there are apparently no differentiation criteria that the accident [continua ..]

3. Historically relevant religious practices: examples of conflict and (possible) resolutions in health and safety legislation

As an example, while we can say that it is generally accepted that religious freedom also extends to exterior manifestations of faith [17], an initial conflict between accident prevention legislation and religious obligation is found in precepts – common to many religions – that envisage an obligation for men to have long beards and hair according to specific style criteria. This does not allow, during some work procedures or in case of emergency or first aid situations that require immediate reaction times, a correct and functional use of personal protective equipment (PPE) or other equipment (for example, not allowing the full adherence of the oxygen mask to the face), which is why directives designed to protect health and safety at work usually include an obligation to shave with a certain frequency [18]. Other, and historically better known, situations of conflict relate to religious precepts that impose specific dress codes. To mention a few, we can just think of the Sikh male worshippers, who are obliged to wear a special turban that makes it problematic if not impossible to wear protective helmets, both those compulsory for driving motorcycles in compliance with traffic laws and those falling under the category of PPE to be used when performing numerous work activities (e.g. in the sector of construction, shipbuilding, excavation, etc.) [19]. With regard to these cases, it is important to note that, from a comparative perspective, there are divergent interpretations. The compatibility of religion-driven clothing with the provisions of worker physical safety has been, for example, discussed in important decisions in the United Kingdom, which, further submitted to the ECHR, led the latter to rule on the case [20]. In this respect, the Court stated that the obligation to wear a helmet is a necessary measure for the safety and health (on that occasion, of motorcyclists) even if it prevents compliance with an ascertained and historically relevant religious practice [21]. Although it does not define the meaning of ‘ascertained’ religious practice and ‘relevant’, this decision has the merit of establishing how, in an attempt of balancing values between religious freedom and health protection, the latter must prevail, because all the measures provided for by national legislation on health and safety at work are to be considered necessary measures for the preservation of fundamental rights. [continua ..]

4. Collective bargaining, reasonable adjustments and freedom of worship: limits and opportunities

Any worker – whatever religion s/he professes – is in the first place an individual who has rights guaranteed not only by Italian law, but also by international and Community law, like any other. For instance, at the international level, reference should be made to Article 18 of the Universal Declaration of Human Rights, Articles 9 and 14 of the ECHR, and Articles 18 and 27 of the International Covenant on Civil and Political Rights (ICCPR). These provisions recognize and recommend (to all and without distinction) the protection of the right to freedom of opinion and religion, including the freedom to manifest it in public, subject to certain limitations and differences in treatment pursued through appropriate and necessary means [24]. At the Community level, the Treaty on the Functioning of the European Union (TFEU) aims to combat, inter alia, religion-based discrimination (Art. 10), reaffirms the identity and contribution of churches, associations and religious communities (Art. 17) and empowers the Council to take measures to combat discrimination based on religion (Art. 19). The latter provision was also the basis for the adoption of Directives 2000/43/EC (relating to equal treatment irrespective of racial or ethnic origin) and 2000/78/EC on equal treatment in the matter of employment and working conditions. In particular, the latter directive aims to establish a general regulatory framework to combat direct or indirect discrimination based, ex multis, on religion and personal beliefs, with particular attention to the protection of employment, working conditions and respect for equal treatment [25]. Also with regard to religion, direct discrimination occurs when, in relation to any reason for discrimination, an individual is treated less favorably than another individual in a similar situation; conversely, indirect discrimination occurs when “an apparently neutral provision, criterion or practice” is adopted (and thus not contrary to the formal principle of equal treatment) but it places the members of a given category in a “position of special disadvantage” [26]. The European legislator’s notion of indirect discrimination is rather broad (as it does not include animus discriminandi), but it nevertheless allows the court to assess the legitimacy of a conduct when “the criterion or the practice are objectively justified by a legitimate scope and the means deployed to achieve it are [continua ..]

5. Conclusions

In conclusion, even if in principle there may be technical or organizational measures provided for by law that may entail structural disadvantages for workers professing a certain religion, the Italian regulator did not provide for any exception to the full and exhaustive application of the regulation in the matter of health and safety. Since these rules are valid for all workers with characteristics of intrinsic “non-regression”, “objectivity” and “proportionality”, their generalized application excludes any direct or indirect discrimination against workers because the treatment – although characterized by uniformity across religions – is justified and proportionate on the level of the objectives pursued and reasonable on the level of the supporting arguments [40]. This solution has the merit of avoiding an excess of claims justified on the religious level (but, potentially, also motivated by mere personal convictions) and, on the collective level, prevents attention to identity profiles from being used as an indirect instrument of social dumping “in exchange for a limited safety at work” [41]. Based on the foregoing, the answer to the question of whether employers can resort to exceptions from the law, even if the regulation does not take into account needs justified by religious beliefs, is negative. It is undisputable that freedom of religion is a fundamental right recognized at the national and Community level and that the notion of “religion” necessarily entails both freedom of conviction (personal and intimate) [42] and freedom of expression of one’s religion in public (community and external) [43], but in this regard it seems inconceivable, even only theoretically, to assume any level of “flexibility” of the regulation referred to herein nor any “reasonable adjustment” in broader terms than those described above (individual or collective). Religious customs, even if relevant to individual identity, can in no event cancel or limit a rule of law dictated to protect health [44], which is a right that cannot be controlled by the individual alone, and a social duty of the entire community. In a multi-ethnic society, the coexistence of different subjects necessarily requires the identification of a common nucleus shared by everyone. If, on one hand, integration does not obviously require that the individual abandons [continua ..]

NOTE