Brevi riflessioni su alcuni problemi derivanti dall'espressione religiosa sul posto di lavoro
Milena S. Rouxinol, Professore ordinario di Diritto del lavoro nell’Università Cattolica Portoghese
Questo articolo mira a riflettere sulle questioni derivanti dalla diversità religiosa e sul suo impatto sui rapporti di lavoro, in particolare i problemi relativi all’orario di lavoro e all’uso di simboli religiosi. Riflettiamo sull’obbligo di ragionevole adeguamento delle condizioni di lavoro e sullo scopo della neutralità religiosa perseguita da alcuni datori di lavoro.
This article aims to reflect on issues arising from religious diversity and its impact on employment relationships, namely problems concerning working time and the wearing of religious symbols. We address the principle of reasonable accommodation of working conditions and we reflect on the purpose of religious neutrality aimed by certain employers.
Keywords: religious beliefs and religious expression – working time – religious symbols – reasonable accommodation – religious neutrality.
Introduction - 1. Equality and non-discrimination on grounds of religious beliefs and the obligation of reasonable accommodation - 2. Sequitur: other working time issues - 3. The wearing of religious symbols: is neutrality in compliance with equality principle? - NOTE
The relevance of religious expression in the context of employment relationships is currently quite visible. Even in countries known by their religious homogeneity, these issues began to arise in a more visible way in the near past. In Portugal, for instance, recent case law provides important rulings concerning that sort of conflicts. In countries where religious tolerance has been socially achieved, like the UK, some voices ask if a tolerant behavior towards minorities is enough to launch a multicultural society or if there is a need for strengthen the principle «equal regard and respect» . How shall the employer deal with religious expression behaviors? May he/she establish a rule of religious neutrality? If we assume that there is a right to diversity emerging from religious plurality together with the principle of equality and non-discrimination , what is the meaning of that assertion in the field of employment relationships? 
1. Equality and non-discrimination on grounds of religious beliefs and the obligation of reasonable accommodation
One of the major ideas when we think about religious beliefs and their impact on employment relationships is the principle of reasonable accommodation. It appears as an employers’ obligation, according to which they shall make working conditions adequate to employees’ religious beliefs and expression, unless that effort requires a disproportionate burden. This obligation is clearly recognized in the field of discrimination on grounds of disability. It is set forth in the Council Directive 2000/78/EC of 27/11/2000. As for religion, if we affirm that principle, we must clarify its source, since it is not recognized in the European or International positive law , as it is not in the majority of national systems . In the literature, that principle is given the significance of an immediate result of equality and non-discrimination . It is held that equality principle comprises the recognition that, when minorities cannot achieve certain goods, services and employments, the problem might not be them, but the impairments created by an environment constructed according to fit the majority . Despite some critics , the principle of reasonable accommodation has solid grounds to be constructed on. It stems «from the verification that the regular application of general rules may (…) be discriminatory towards people with particular physical or cultural (such as […] language or religion) characteristics. In a [continua ..]
2. Sequitur: other working time issues
Besides weekly rest, the definition of public religious holidays is also at the origin of interesting issues; in Europe (although not only), those holidays, like it happens with weekly rest day (Sunday) , have been defined in line with the Christian history, which, at least from a religious point of view, puts in disadvantage those of other faiths. Thus, both legal rules defining those holidays and the employer’s decision not to give employees with other faiths time off in the days of their celebrations might be considered indirectly discriminatory . An issue of this sort has recently been presented to the Court of Justice. We are referring to the Cresco Investigation case . According to the Austrian regulation, the Good Friday holiday was recognized only to members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church. If an employee belonging to one of those churches worked, despite that day being a paid holiday, he/she would be entitled to payment for the work actually done, whereas other employees, who were not members of those churches, did not have such entitlement. The Court of Justice considered it was not in accordance with the European Law that a holiday was given only to members of some Christian religions; and stated that «article 21 of the Charter of Fundamental Rights of the EU should be interpreted as meaning that (…) a private employer who is [continua ..]
3. The wearing of religious symbols: is neutrality in compliance with equality principle?
A different range of problems comes from the wearing of religious symbols, namely an Islamic veil, like in the cases of S. Achbita , and A. Bougnaoui , of the Court of Justice - . These decisions draw our attention to a very important issue: the (un)reasonableness of giving employers the right to impose a rule of religious neutrality in the working place . Achbita worked, as a receptionist, for G4S, a private undertaking which provided reception services. There was an unwritten rule within G4S according to which workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace. In 2006, the employee declared she intended, in future, to wear an Islamic headscarf during working hours. She was told that would not be tolerated because of the G4S’s position of neutrality. After a period of absence from work due to sickness, S. Achbita notified her employer that she would return to work and that she was going to wear the Islamic headscarf. In the same month, the neutrality policy was set forth on a written regulation. Just after that, Achbita was dismissed on account of her continuing insistence to wear the Muslim headscarf, breaching the neutrality policy followed by the enterprise. The Court of Justice found that: article 2/2-a of Directive 2000/78/EC must be interpreted as meaning that the prohibition on wearing an Islamic headscarf arising from an internal rule of a private [continua ..]