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.

SOMMARIO:

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

Introduction

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» [1]. 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 [2], what is the meaning of that assertion in the field of employment relationships? [3]

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 [4], as it is not in the majority of national systems [5]. In the literature, that principle is given the significance of an immediate result of equality and non-discrimination [6]. 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 [7]. Despite some critics [8], 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 pluralist society, it is highly expectable, even normal, that certain rules concerning public services and workplaces, reflect the history, the values, the culture and the identity of the majority». Thus, that obligation is a tool for securing minorities’ social integration and, from a pragmatic point of view, an instrument for «managing religious diversity» [9]. Conceiving such an obligation charging employers does not make any sense if we do not recognize the so-called forum externum of the religious freedom. Personal beliefs (forum internum) may be revealed in external manifestations – clothes/accessories; prayers, eating choices, etc. –, according to the rituals proposed or imposed by the religion in cause. In fact, as J. Gomes [10] explains, that if it was not to grant the right to manifest each one’s beliefs, the legal recognition of religious freedom would be worthless; «not even the worst dictators – Hitler, Stalin, or [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) [15], 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 [16]. An issue of this sort has recently been presented to the Court of Justice. We are referring to the Cresco Investigation case [17]. 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 subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday, provided that the latter have sought prior permission from that employer to be absent from work on that day, and, consequently, to recognize that those employees are entitled to a payment in addition to their regular salary for work done on that day where the employer has refused to approve such a request». The Court founded its conclusion on the comparison between the employees to whom no time off was given and the employees, members of the Churches mentioned above, covered by the recognition of Good Friday as a holiday. The comparison was focused not properly on strict religious issues but on economic aspects (the total wage amount). Maybe the ruling had been different if the Court had asked: are atheist/agnostic employees or employees to whom the Good Friday has not any symbolic significance in a comparable situation to those who are covered by the legislation mentioned [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 [20], and A. Bougnaoui [21], of the Court of Justice [22]- [23]. 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 [24]. 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 undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace does not constitute direct discrimination; but such an internal rule may constitute indirect discrimination if it the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer of a policy of neutrality, and the means of achieving that aim are appropriate and necessary (which it is for the national court to verify). The Bougnaoui case is similar. The employee was dismissed after having worn a Muslim headscarf. The undertaking, Micropole, provided informatic services and A. Bougnaoui was sent several times to contact with customers. At some of those occasions, she wore the headscarf. She was dismissed with the argument that, although the enterprise respected freedom of opinion and religion, it had [continua ..]

NOTE