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Il principio di laicita' nel rapporto di lavoro alla luce della giurisprudenza nazionale ed europea

Caterina Mazzanti-Gianluca Picco *,Dottorandi di ricerca in Diritto del lavoro nell’Università degli Studi di Udine

Il presente contributo affronta il problema riguardante l’impatto del principio di laicità sul rapporto di lavoro. L’analisi si sviluppa intorno a due temi. Il primo, relativo al diritto all’obiezione di coscienza e ai suoi effetti sul rapporto di lavoro. Il secondo, inerente all’incidenza dei precetti religiosi sul luogo e sull’orario di lavoro, nonché sulle modalità della prestazione lavorativa.

PAROLE CHIAVE: laicitÓ - obiezione di coscienza - precetto religioso - prestazione lavorativa

The principle of laicism in the employment relationship from the perspective of national and European jurisprudence

This essay aims to tackle the issue concerning the impact of laicism in the employment relationship. The analysis delves into two themes. The first, concerning the right to conscientious objection and the consequences of its exercise on the employment relationship. The second concerns the incidence of the religious precept on the working place and time, as well as on the working performance.

Keywords: laicism – conscientious objection – religious precept – working performance.

Sommario:

1. Introduction - 2. The right to conscientious objection - 3. The right to conscientious objection in the employment relationship - 3.1. Differences in treatment between non-objecting and objecting medical personnel. The decision of the European Committee of Social Rights - 3.2. Selecting procedure for abortion providers - 3.3. The decisions of the European Court of Human Rights on the right to conscientious objection - 4. The refusal to work based on religious grounds - 4.1. Religious Precepts and Work Place - 4.2. Religious precepts and working time - 4.3. Religious precepts and working performance - 5. Final Remarks - NOTE


1. Introduction

How do the principle of laicism and the freedom of religious beliefs impact on the employment relationships? It is well known that the principle of laicism is a milestone of our legal framework, even though it does not find an explicit normative provision neither within the Constitutional Charter, nor in the supranational sources binding for our system, such as the ECHR and the Charter of Nice [1]. Consequently, the empirical approach to this topic appears essential. After a brief introduction regarding the aforementioned principle, this essay aims to deeply analyse the effect of laicism on the labour law field, from the perspective of the national and European jurisprudence. The Constitutional Court has clarified that laicism might be defined as a “supreme principle” of the constitutional order and represents “one of the profiles of the form of State” outlined by the Italian Constitution [2]. Unlike the French system, which is neutral with respect to the different religious beliefs, the Italian, on the contrary, has accepted, at least ideally, a positive approach, in accordance to which the State has the task of removing all obstacles to the free manifestation of the religious belief and to promote confessional pluralism, in a framework of values with equal dignity. Strictly connected to the laicism is the principle of tolerance, in the light of which the respect and the will to understand the cultures, philosophies and religions of [continua ..]

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2. The right to conscientious objection

In the perspective of a positive approach to laicism, it is necessary to find a right balance between opposing interests, which are recognised and protected by the constitutional legal framework. This is what happens, for instance, when the right to health and to self-determination meets the right to conscientious objection. Which right must prevail? As known, the latter allows to refuse a duty in case it collides with ethical convictions. It is possible to identify two components of this right. A negative one, consisting in the rejection of a rule set by the State and a positive one, the personal adhesion to moral, ideological or religious values [5]. The topic involves different areas of the legal framework, from the field of military service [6] to the medical care system, according to which the aforementioned right must be balanced with the fundamental protection of health, as emerges from Art. 32 Italian Constitution and Art. 8 ECHR. According to the Law n. 194/1978 (rules for the protection of maternity and the voluntary interruption of pregnancy), no person shall be coerced, held liable or discriminated in any manner because of his or her refusal to perform an abortion (Art. 9). The application of this provision might be problematic, since it involves two opposing interests. From the one side, the right of the women to legally interrupt her pregnancy and, from the other, the freedom, granted to medical personnel, to refuse to provide abortion due to [continua ..]

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3. The right to conscientious objection in the employment relationship

As previously pointed out, one of the maximum expressions of the right to conscious objection could be found in Law n. 194/1978, concerning the protection of maternity and the voluntary interruption of pregnancy. According to Art. 9, in fact, no person shall be coerced, held liable or discriminated in any manner because of his or her refusal to perform an abortion. What does it happen when the right to conscientious objection becomes the general rule instead of an exception? The large exercise of it may have a negative impact on the abortion service and its regular provision, if medical personnel increase its use. In Italy, in the last years and in particular in 2017, the number of gynaecologists who exercise the right to conscientious objection amount to the 68,4% at the national level, with significant differences between north and south of Italy, with the risk of a discrimination on the ground of territorial differences and socio-economic status [11] in the access to this service. In some Italian regions the gap between abortion providers and conscientious objector is even more significant [12]. The issue has an impact also on employment relationships and on working conditions. These topics will be deeply analysed in the following paragraphs (see paragraphs 3.1, 3.2). It is possible to highlight that abortion providers’ working conditions are worse than conscientious objectors’ ones, since they are required to perform more duties and to replace [continua ..]

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3.1. Differences in treatment between non-objecting and objecting medical personnel. The decision of the European Committee of Social Rights

As anticipated, abortion providers have to replace colleagues whose refuse to the service is based on personal beliefs. The increase number of such procedures performed by non-objecting practitioners, their gradually repetitive character as well as working conditions involving overtime or work isolation affect the physical and mental health of such doctors. In addition, non-objecting practitioners are required to exclusively carry out abortion procedures and are unable therefore to carry out other procedures, for which they have been trained and thereby negatively affecting the non-objecting medical practitioners’ possibility to develop their professional competencies. The problem has a national echo and for this reason in 2013 the CGIL submitted a complaint before the European Committee of Social Rights [13]. According to the complainant organisation, abortion providers would suffer a discrimination, whether compared to the others. The unjustified difference would result, in particular, in the workload (abortion providers are required to perform additional tasks), in career opportunities, as well as in the protection and safety in the workplace, with a violation of Articles 1 (the right to work), 2 (the right to just conditions of work), 3 (the right to safe and healthy working conditions) and 26 (the right to dignity at work) of the European Social Charter [14]. The European Committee of Social Rights has recognized a violation of the right to work, [continua ..]

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3.2. Selecting procedure for abortion providers

In order to ensure women’s right to the interruption of pregnancy, some hospitals have reserved few work positions for the abortion service, in accordance of the Law n. 194/1978 [16]. This is what happened, in particular, in Rome at the “San Camillo Forlanini” Hospital [17] which decided to hire some medical personnel specifically for the abortion service. The competition announcement did not explicitly reserve job positions to doctors who are not objectors. It only referred to the abortion service. In other words, there was an implicit commitment to refrain from exercising conscientious objection. The case raises two issues. The first, concerning the compatibility of the selection procedure with Art. 9, Law n. 194, which protects the right to conscientious objection. The problem concerns the difficult balance between opposing individual rights. On the one hand, that of the woman to interrupt her pregnancy, which comes from Art. 32 of the Constitution. On the other, that of the doctor to exercise conscientious objection to abortive practices, which might be traced back to Art. 2, 13, 19 and 21 of the Constitution in order to protect individual beliefs and sensibility. What is the possible solution? It seems to be preferable to adopt a literal interpretation of the mentioned Art. 9, which leads to make the woman’s right prevailing over the conscientious objection. At this regard, Art. 9 admits the right to conscientious objection, but at [continua ..]

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3.3. The decisions of the European Court of Human Rights on the right to conscientious objection

As anticipated, the right to conscientious objection does not only concern the medical care, since it involves different areas of the legal framework, not only on a national level, but also on a European one, as it clearly emerges from the European jurisprudence’s decisions. At this regard, it has to be highlighted that the European Court of Human Rights rules in favour of the exercise of such right within the limits of national legal frameworks. It points out that each member State has the freedom to balance opposing interests, as it clearly expressed in two decisions, Ladele vs. United Kingdom and Mc Farlane vs. United Kingdom [20]. In particular, in the case Ladele vs. United Kingdom, the European Court of Human Rights has ruled in favour of the legitimacy of an Officer’s dismissal, who refused to celebrate ceremonies between homosexual persons and to register their unions after the enter into force of the Civil Partnership Act in 2004, because of her adhesion to the catholic faith. The employer institution (the London Borough of Islington) did not consider admissible the conscientious objection she expressed, as in contrast with the specific code of conduct [21]. Nevertheless, to meet her personal needs, she was exempted from the celebration of civil unions and assigned to the management of the registers and to the fulfilment of administrative formalities. However, she refused those duties and was therefore dismissed. As highlighted by the European [continua ..]

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4. The refusal to work based on religious grounds

Once examined in detail the different consequences that conscientious objection has on employment relationships, the research – based on national and supranational jurisprudence – aims to deeply analyse the incidence of religious precept on working place and time, as well as on the ways to perform the work [23]. This analysis draws from the multiple consequences that religious beliefs and liturgical rules have on workplace and on individuals’ daily life style [24]. This topic has actual and delicate features, since it is situated in the European social and political context, namely a framework where Europe is struggling to integrate and regulate an unprecedented migratory flow. Today, more than ever, religious freedom thus requires balancing different interests to avoid limiting certain individuals’ liberty. In the work place, there are certain typical cases as the display of religious symbols [25], the connection between the observance of religious festivities and when weekly rest is scheduled, the respect of specific diets [26], the availability of spaces devoted to religious worship and the opportunity or not to wear specific clothing. The debate about how to balance individuals’ religious beliefs and working requirements is a topic highly disputed [27], since the latter play a significant role in the quality of individuals’ dignity and access to economic means [28]. Eventually, a certain religious [continua ..]

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4.1. Religious Precepts and Work Place

The European Court of Human Rights (ECHR) has a large jurisprudence regarding the debated issue of the display and usage of religious symbols in the work place, even though it misses a univocal direction on the balance of interests between the right to express one’s beliefs through religious symbols (i.e. hijab [31] or tattoos [32]) and other constitutional rights such as other employees’ right to work in a “neutral” [33] environment or other health and economic rights. The discussion about the display of religious symbols as means to be individually and socially recognized as devoted to a specific faith has increased [34], so laws must find a way to defend religious’ liberty in any context and, above all, in the work place [35]. For what concerns the Italian case, the display of religious beliefs became an issue highly debated in the case of the exposure of the crucifix in polling stations, courts and schools. The debate concerned the fact that the display of the crucifix (Christian symbol) could hinder both the right to one own’s individual liberty and other pivotal principles such as the one concerning the people’s equality (Article 3 of Constitution) and the secularity of the state (Articles 2, 3, 7, 8, 19, 20 of Constitution) [36]. It is possible to find two main cases where a judge had to evaluate if work place’s rules hindered individual’s religious liberty up to the point that the [continua ..]

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4.2. Religious precepts and working time

The second topic that has to be analysed is working time [40] and its coincidence with religious holidays, days when observants cannot work because they have to worship their religion. An increasing part of the population does not give a significant meaning (religious or cultural) to religious holidays (often Christian ones) formally recognized by law, but they ask instead to be able to attend the holidays of the religion they belong to [41]. Acknowledging these requests entails not only resolving practical problems related to how to reconcile these holidays with firms’ organizational necessities, but also deciding on issues related to recognizing the diverse religions’ demands. For the first time, already in 1976 in the famous case Prais (C-130/75), the European Court of Justice argued in favour of individuals’ religious freedom in the matter of religious holidays [42]. More recently instead, Court of Cassation – with the judgment nr. 3416/2016 – dealt with the case of a catholic worker who refused to work on Sundays so as to be able to worship his religious beliefs, but that accepted to recover this shortcoming on his midweek resting day. Hence, judges had to decide whether or not the right to worship and the one to entrepreneurship were equivalent. The Court did not give a clear answer. Nevertheless, it considered more important the religious right, since it deemed unacceptable the sanctions imposed to the employee by the [continua ..]

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4.3. Religious precepts and working performance

Finally, religious precepts can affect the way individuals perform at work. For example, it is emblematic the judgment of the Appeals Court of Venice – April 2019 [44] – that dismissed an imam that for his religious beliefs had refused to touch and transport alcoholic beverages, a substance prohibited by the Quran [45]. Moreover, the same religious symbolism aforementioned also poses the problem of compatibility with the right to health of the worker himself [46] and with the freedom of economic initiative. Regarding this latter, the goal is to reconcile religious liberty and entrepreneurship one. On the hand, employees must be granted the right to worship their beliefs. On the other hand, entrepreneurship rights imply that both employees and clients must be treated equally and neutrally. The European Court of Human Rights (ECHR) legislated on the right of religious freedom, protected by the Article 9 CEDU and by the ban on discrimination of the Article 14 CEDU (15 January 2013), analysing four similar cases in the United Kingdom regarding the refusal of an employee to fulfil to what requested by the employer. These cases concerned a refusal of the employee to work so as to be able to worship, a refusal to perform what requested by the employer and a decision to display religious symbols despite the internal rules of the firm asking otherwise (Case “Eweida and others v. The United Kingdom”) [47]. Even though the Court gave some [continua ..]

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5. Final Remarks

Although the positive approach to laicism allows to promote different values and ideals, it exposes to the risk of large conflicts between opposing interests. The right to conscientious objection and the freedom of beliefs, expressions of such idea of laicism, often collide with other constitutional principles. In this scenario, boundaries between opposing interests are blurred, as emerges from the analysed decisions. Therefore, it is necessary to rethink on integration policies in order to identify concrete solutions, in particular whether the exercise of the freedom of personal beliefs might have a negative impact on the others and compromise constitutional rights. In the employment relationships, the overcoming of conflicts raised by different religions and by multiculturalism could be mitigated thanks to collective bargaining. Differently to national laws, in fact, collective bargaining is not limited to general statements, but it provides specific and concrete forecasts (on a national, local or a company level), finding a better compromise between employers’ needs and employees’ religious beliefs. Those rules, especially on a company level, might be able to offer more suitable solutions.

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NOTE

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