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. 545/14
15 of July of 2014
Under a norm in the Organic Law governing the Constitutional Court, the latter decided that a Law governing Religious Freedom (LLR) norm which says that one of the requisites for being dispensed from work for religious reasons is that the person in question must be subject to a “flexible working-time regime”, must be interpreted such that it also applies to shift-work regimes. This is the only interpretation that is in conformity with the Constitution.
It would be unconstitutional to interpret the norm in such a way that it applied solely to a specific flexible working-hours regime, because this would be so restrictive that it would lead to the norm being applied in only a very small number of cases and to no significant practical effect. When the legislator referred to work under a “flexible working-time regime”, it did not mean just those situations in which workers can manage their working hours by choosing the times at which they begin and finish work, but also all those in which it is possible to make completing the total required number of hours at work compatible with being dispensed for the purpose of fulfilling religious duties. The decisive element in the light of the LLR requisites for this dispensation is that the applicable working-time regime must allow the worker to offset the periods in which he/she suspended his/her work against other periods in which he/she makes up the lost time.
The appellant in this concrete review case was a public prosecutor, whose request to be dispensed from working shifts at times when the Public Prosecutors Office (MP) is required to be ready to respond to urgent cases, when those shifts fall on Saturdays, was refused by both the MP’s Supreme Council and the Supreme Administrative Court (STA). She argued that as a member of the Seventh Day Adventist Church she was obliged to reserve Saturdays for religious purposes and refrain from all secular work.
The question before the Constitutional Court was the constitutionality of a norm that subjects the right to dispensation from work for religious purposes to the requisite that the worker must be subject to a flexible working-time regime, when interpreted to mean that this legal formulation only applies to a specific flexible working-hours regime.
The court a quo argued that public prosecutors are subject to the operating hours practised by the country’s judicial services, and do not enjoy a specific flexible working-hours regime, which is one of the cumulative requisites for being dispensed from work for religious reasons. The STA considered that doing shift work on Saturdays was a functional duty which, inasmuch as it is freely accepted by staff who take up the position, is incompatible with the exercise of the freedom of worship.
The Supreme Council of the Public Prosecutors Office argued that the constitutional norm enshrining the right of freedom of religion lays down that no one can be deprived of rights because of their religious practice, but equally that no one can be released from duties for the same reason; and that the LLR itself says that the freedom of conscience, religion and worship permits the restrictions needed to safeguard other constitutionally protected rights and interests.
The Constitutional Court recalled that the constitutional precept which enshrines the right of freedom of conscience encompasses various elements: that freedom itself, in the shape of the ability to choose ethical and moral standards by which to evaluate forms of conduct; the freedom of religion (the freedom to adopt a religion or not); and the freedom of worship, as a dimension of the religious freedom pertaining to believers (both an individual and a collective right to engage in outward acts of veneration specific to a given religion).
While the freedom of conscience only concerns the individual sphere, the freedom of religion possesses a collective and institutional dimension, and also implies that different faiths are free to exercise their religions. As an individual right, the freedom of religion requires the state to refrain from acts that would violate that right, but also places it under a regulatory obligation which presupposes that the state will undertake a set of obligations that can vary depending on each religion’s representativeness and are intended to provide believers with the conditions they need to fulfil their religious duties. The state is not ensuring the freedom of religion if, despite recognising their right to have a religion, it places religious believers under conditions that prevent them from practising it.
The principle of the separation of church and state and that the state must not be religious or faith-based implies that the state must be neutral in religious terms; it does not mean the state should be unaware of religious facts as social facts.
At issue in the present case was the freedom of worship, and particularly the right to reserve a certain period of time for religious purposes, when that period can be incompatible with fulfilment of labour-related duties within the framework of a subordinate labour relationship.
In various cases the European Commission of Human Rights and the European Court of Human Rights have seen the right of religious freedom from an essentially negative perspective, excluding the possibility that the freedom of worship can superimpose itself on the contractual obligations derived from a labour relationship and on other functional duties pertaining to a legally defined status.
In the present case a public prosecutor’s request to be dispensed from shift work on Saturdays was denied because the Supreme Council of the Public Prosecutors Office and the Supreme Administrative Court both classified shift work as a rigid work schedule.
The Constitutional Court took the view that the LLR norm which makes flexible working-time a requisite for dispensation from work cannot be seen as blank chequebook that leaves the concrete implementation of the flexible working-time concept to other normative provisions. If this were not the case, the exercise of a fundamental right would be dependent on the ordinary legislator, who could opt to do away with flexible working times as a format in the Public Administration or restrict its field of application; or, in the case of private-sector labour relations, leave it to whether or not the parties either agreed to it or replaced it with some other system that did not fall within the typical concept of flexible working times.
The Court said that the flexible working-times regime is a concept that is broader than this and does not correspond to the technical/legal meaning of the term ‘flexible working hours’, which the legislator adopts in other places in the normative system and for other legal purposes. There is nothing to prevent the flexibility regime to which the law refers from being applicable to shift work, given that this type of working arrangement is subject to a criterion of a rotating configuration and regular changes in the members of staff who do the work.
This is particularly evident in the case of the prosecutors who work for the Public Prosecutors’ Office. They are bound to participate in the shifts which the Attorney-General’s Office organises in order to respond to urgent situations, during the judicial holidays, or whenever else the MP’s work justifies it. They can also be included in the shifts organised by the law courts to undertake urgent duties which are provided for in the Criminal Procedural Code, the Mental Health Law and the Law governing the Custody, Protection and Re-education of Minors and which must be performed outside the normal working week. The Court said that it is precisely because we are not in the presence of a permanent judicial service that has to be undertaken on working days and during normal working hours, but rather a service that is organised in shifts, that the LLR provision is applicable.
It is possible for public prosecutors who ask to be dispensed from work for religious reasons to be assigned to judicial districts where there is less shift work at the times when the dispensation is needed, thereby making the exercise of this right as compatible with their fulfilment of their functional duties as possible.
The fact that the LLR norm that a person who requests dispensation from work on religious grounds must fully make up for the working hours in question at another time does not conflict with the classification of shift work as being a flexible working-time regime; and if it is not materially possible to allow a prosecutor to make up for all the shifts she would like to be dispensed from, there is nothing to stop her from being granted that dispensation for the number of days that is possible.
The fact that it may be impossible to wholly or partially fulfil the condition that the dispensed working hours must be entirely made up for at another time does not de-characterise the variable, rotating nature of shift work, nor does it dispense the managerial body concerned from finding a staff management solution that is compatible with the exercise of a constitutionally guaranteed right.
There is nothing to prevent a flexible working-time regime from covering not only shift work, but also staggered working hours that make it possible to require different groups of staff to start and finish work at different times, continuous working days that allow work to be concentrated during a particular time of day, and all the other situations that are not subject to fixed working hours or where there is no set work schedule. The Constitutional Court concluded that both the text of, and the reason – the desire to permit the concrete enjoyment of a fundamental right – for the precept suggest an expansive interpretation that excludes the one adopted by the STA.
The Court therefore found the norm, when interpreted as it had been by the MP and the STA, to be unconstitutional.
The Ruling was unanimous.
Rulings nos. 423/87 (27-10-1987); and 174/93 (17-02-1993).
- European Commission of Human Rights decisions of: 3 December 1996, Case of Tuomo Konttinen v. Finland; 9 April 1997, Case of Louise Stedman v. United Kingdom; and 12 March 1981, Case of X cv. United Kingdom.
- European Court of Human Rights decision of 24 September 2012, Case of Francesco Sessa v. Italy.