Fundamental rights. Labour Law – freedom of religion.
Law governing the freedom of religion;
Freedom of conscience;
Freedom of religion;
Right of worship;
Working hours and schedule;
Restrictions on the exercise of rights;
Restrictions on fundamental rights;
Conflict of rights.
RULING No. 544/14
15 of July of 2014
The present case concerned norms contained in the Law governing Religious Freedom (LLR) which say that workers subject to a flexible working-time regime can be dispensed from working on the religious holidays and at the times on the day on which their faith requires them to worship or refrain from working, and that they can make up for this by working the same number of hours at a different time.
The courts of first instance and appeal interpreted these norms such that they did not apply to the shift-work regime as well. The appellant challenged the Court of Appeal decision on the grounds of her constitutional freedom of religion.
The Organic Law governing the Constitutional Court gives the latter the competence to determine the constitutionality of a norm as interpreted and applied by a lower court whose decision is then appealed to the Constitutional Court, and if it finds the norm interpreted in this way to be unconstitutional, to say how it should in fact be interpreted and applied in the case in question. In pursuance of this competence, the Court decided that these norms do indeed also apply to the shift-work regime.
The Court said that if the LLR is interpreted in conformity with the Constitution, the flexibility concept must be considered to include every situation in which it is possible to make working hours compatible with dispensing workers for religious reasons.
The variable, rotating configuration of the shift-work regime is flexible and permits solutions that fulfil both the letter and the spirit of the law, in such a way as to create conditions that favour the exercise of workers’ religious freedoms whenever possible.
The appeal in this concrete review case was against a decision in which the Lisbon Court of Appeal rejected a judicial challenge against the dismissal of a worker on the grounds that she had failed to fulfil her contractual work schedule. The appellant (the actual appellant was a trade union acting on behalf of its member) alleged that she was entitled to refuse to work from sunset on Fridays until sunset on Saturdays, because her religion observes this period as a day of rest. This meant only partially completing her work schedule on those Fridays on which her shift ended after sundown, and not working on Saturdays. The court a quo considered that for this to be the case, the worker must be subject to a flexible working scheme, and that for schemes to be considered flexible, there must be situations in which there are delimited periods within which the worker must obligatorily be present, but he/she can choose the exact times at which he/she begins and ends work, within certain limits.
The Constitutional Court recalled that freedom of religion is not only enshrined in the Constitution of the Portuguese Republic (CRP), but is also recognised in both universal and regional international law, including EU Law, and possesses binding force under the founding law of the European Union.
The right of freedom of religion confronts the constitutional judge with one of the most important core areas of the various fundamental rights. The Constitution defines this right as “inviolable” – an adjective the CRP only employs in relation to two other cases: the inviolable right to life; and the inviolable right to moral and physical integrity.
Freedom of religion is assured even in cases in which the exercise of other rights is suspended by a declaration of a state of siege or emergency.
In its jurisprudence the Constitutional Court has emphasised that that which religious freedom requires of the state is not a pure, negative non facere, but a positive facere embodied in a duty to ensure or provide the conditions needed to exercise one’s religion.
The protection the CRP gives to the freedom of religion encompasses both the individual and the collective exercise of religion, with the latter including its institutional dimension. The externalised subjective aspect of religious freedom gives people both the right to act freely in accordance with the respective convictions and beliefs in their relations with public authorities and others, and the possibility of freely engaging in activities that constitute manifestations and expressions of the religion they profess. In casu the appellant invoked the right to worship and the right to reserve a day each week – from sunset on Friday until sunset on Saturday – for that purpose, as required by her religion; however, the exercise of the right to act in conformity with her religious convictions conflicted with the duties derived from her labour situation.
The Constitutional Court took the view that notwithstanding the fact that the scope of the protection afforded to the right of freedom of religion in the jurisprudence of the European Commission of Human Rights and the European Court of Human Rights suggests that what counts is the negative dimension ‘non-discrimination’, these days the protection of religious freedom possesses a framework in which the higher level offered by a positive protection must prevail. The transnational systems for protecting human rights do so at the minimum requirable level, but this does not prejudice the possibility that each state’s internal law can provide a broader protection at the higher level of protection derived from the individual national constitution.
The Portuguese Constitution requires the ordinary legislator to ensure that workers in subordinate positions can exercise the right of freedom of religion. It does not demand the neutralisation of this personal facet when people work for third parties, albeit the duties derived from contractual obligations must be safeguarded.
The state must remove obstacles to the exercise of religious freedom, and must create social conditions which are more favourable to that exercise.
The ordinary legislator has provided for a regime under which work can be suspended in order for workers to exercise their religious freedom, with the creation of a specific duty on the part of public and private employers to respect that right.
The legal regime governing the requisites for a worker to be dispensed from work under the Law governing Religious Freedom (LLR) are as follows: the worker must be part of a flexible working-hours regime; he/she must belong to a church or religious community that has officially communicated the rest days and times prescribed by the belief they profess; and the working hours from which the worker is dispensed must be made up for in full. The regime reflects a concern on the legislator’s part to take account of religious organisations besides the Catholic Church: the standard weekly rest day for workers in Portugal is Sunday, which is the Catholic holy day, and this legal regime thus responds to the desire to not only accommodate minority religious organisations, but also, as far as possible, the factual differences between them.
The judgement as to how to make the rights and interests at stake in a worker’s religious freedom on the one hand and the employer’s right to exercise its economic initiative on the other – in the present case with the latter including the right to organise working time – compatible with one another must be made by the legislator. When exercised within the scope of a labour relationship, religious freedom can be subject to a certain degree of compression justified by the rights and interests in play.
In its decision the Court of Appeal said that the exercise of the right to be dispensed from work can only be invoked by workers who are subject to a flexible working-time regime that is itself deemed indispensable to fulfilment of the requisite that the worker must fully make up for the working hours which are suspended. The court a quo then said that a ‘flexible working-time system’ can only be said to exist in working-time organisation regimes that delimit periods within which the worker must obligatorily be present, but can choose the exact times at which he/she starts and finishes work within given limits.
The Constitutional Court took the view that in the case before it, the way in which the Court of Appeal weighed up the configuration of the exercise of the workers’ right of freedom of religion against other constitutionally relevant rights and interests was not in conformity with the protection the CRP affords to the freedom of religion. It felt that the Court of Appeal had placed the right of free economic initiative and the freedom of entrepreneurial organisation above the right of freedom of religion.
The Constitutional Court said that the command the Constitution gives the ordinary legislator is to grant maximum efficacy to the right derived from the freedom of religion, without prejudice to the need to adequately weigh up the other rights and interests that are protected by the CRP. An interpretation of the flexible working-time requisite that is entirely linked to a format for determining working hours which is decided by the employer, without any relationship to the possibility for a worker who is a religious believer to observe commands which are given by his/her religion and may in some way conflict with the working-time organisation scheme to which he/she is subject, de-characterises the broad protection the Constitution affords to religious freedom.
The Constitutional Court said the lower court had found that the requisite for the worker to be subject to a flexible working-hour regime was not fulfilled in this case because it had attributed too narrow a scope to the flexible working-hour concept. An interpretation whereby the only applicable situation is one in which workers are part of a scheme involving a period within which it is obligatory to be at work, but it is agreed that the exact starting and finishing times can vary within that period, would entail an unreasonable and excessive compression of the freedom of religion in a manner that would not be permissible under the constitutional principle of proportionality. Employers are also responsible for looking for solutions in terms of the ways in which labour is organised that enable workers to exercise their fundamental rights – in the present case, the right of freedom of religion.
Rulings nos. 423/87 (27-10-1987); 174/93 (17-02-1993); 602/13 (20-09-2013).
European Commission of Human Rights – Case of X v. United Kingdom, Application no. 8160/78; Case of Tuomo Konttinen v. Finland, Application no. 24949/94; Case of Louise Stedman v. United Kingdom, Application no. 29107/95.
European Court of Human Rights – Case of Francesco Sessa v. Italy, Application no. 28790/08.
Spanish Constitutional Court – Sentence no. 19/1985 of 13 February 1985.