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The protection of freedom of religion or belief in the workplace

Doc. 15015: collection of written amendments | Doc. 15015 | 28/01/2020 | Final version

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ADraft Resolution

1The Parliamentary Assembly recalls that Europe is home to a wide range of religious beliefs and that it promotes the culture of “living together” based on religious pluralism. On many occasions, it has condemned acts of intolerance and discrimination on grounds of religion or belief and has called on Council of Europe member States to take stronger measures to combat such acts.
2The Assembly recalls its Resolutions 2036 (2015) on tackling intolerance and discrimination in Europe with a special focus on Christians, 2076 (2015) on freedom of religion and living together in a democratic society, 1928 (2013) on safeguarding human rights in relation to religion and belief, and protecting religious communities from violence and its Resolution 1846 (2011) and Recommendation 1987 (2011) on combating all forms of discrimination based on religion.
3The Assembly recalls that the freedom of thought, conscience and religion is a universal human right enshrined in Article 18 of the Universal Declaration of Human Rights, Article 18 of the International Covenant on Civil and Political Rights and Article 9 of the European Convention on Human RightsETS, No 5. (the Convention). Moreover, discrimination on grounds of religion or belief is prohibited under Article 26 of the International Covenant on Civil and Political Rights, Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention.
4The freedom of thought, conscience and religion has both an internal and an external aspect. The internal aspect – the right to hold or not to hold a belief and to change religion as a matter of conscience – is an absolute right and cannot be subject to limitations. The external aspect – the freedom to manifest one’s religion or beliefs “either alone or in community with others and in public or private” – is not absolute. Any restrictions on it must, however, be “prescribed by law” and “necessary in a democratic society” and must pursue a legitimate aim. This implies, amongst other things, that any interference with manifestation of religion or belief must be proportionate to the legitimate aim being pursued.

In the draft resolution, paragraph 4, after the fourth sentence insert the following words: "The legitimate aims are public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others."

Explanatory note

This amendment explicitly states the legitimate aims for restricting freedom to practise one’s religion or belief as they are articulated in Article 9 para. 2 of the European Convention on Human Rights and Article 18 para. 3 of the International Covenant on Civil and Political Rights.

5The Assembly recalls that freedom to manifest one’s religion or belief applies also in the workplace and that the European Court of Human Rights has developed an extensive case-law on this issue. It also stresses that religion is an essential aspect of one’s identity and that religious identity encompasses religious practice as well as belief. Given the fact that many people spend a large share of their daily lives at work, the question of accommodating the manifestation of employees’ religion or belief is thus of crucial importance.

In the draft resolution, paragraph 5, third sentence: replace the words "the question of accommodating the manifestation of employees’” with the following words: "ensuring the non-discrimination of employees on grounds of their"

Explanatory note

International human rights law does not apply “reasonable accommodation” to freedom of religion or belief. Such concept is ineffective in achieving the draft’s objectives. Instead, a clear and unambiguous reference to non-discrimination is needed to fulfil the draft’s objectives, and ensure respect for fundamental rights and freedoms for all.

6The Assembly also notes that the presence of members of different religious or non-religious groups may cause challenges in the workplace that some employers may try to resolve by imposing prima facie neutral rules. However, the application of prima facie neutral rules in the workplace – such as those on dress codes, dietary rules, public holidays or labour regulations – can lead to indirect discrimination of representatives of certain religious groups, even if they are not targeted specifically.
7The Assembly concludes that in certain circumstances, “reasonable accommodation” by employers of their employees’ religious practices may be a practical approach towards ensuring the proportionality of any interference with the manifestation of religion or belief, thereby avoiding discrimination and violations of employees’ rights in these respects. It is also a step towards ensuring substantive equality of adherents of different religions or beliefs. Whilst a formal mechanism for reasonable accommodation of religion or belief has been explicitly incorporated into the legislation of Canada and the United States of America, so far it has not been the case in any European country.

In the draft resolution, replace paragraph 7 with the following paragraph:

"The Assembly reaffirms that member States have an obligation to ensure non-discrimination in the workplace including on the grounds of religion or belief. The freedom of employees to practice their religion or belief may only be restricted if the restrictions are in line with human rights law and standards, necessary, proportionate, and pursue a legitimate aim."

Explanatory note

To meet Member States’ human rights obligations, this amendment reaffirms the obligation of non-discrimination on grounds of religion or belief, and explicitly states the possible legal restrictions to freedom to practice one’s religion or belief.

8The Assembly, therefore, calls on Council of Europe member States to:
8.1promote a culture of tolerance and “living together” in a religiously pluralist society, in accordance with Articles 9 and 14 of the European Convention on Human Rights and other international legal instruments on human rights protection;
8.2ensure that the right of all individuals under their jurisdiction to freedom of thought, conscience and religion is respected;

In the draft resolution, at the end of paragraph 8.2, insert the following words: "without impairing for anyone the other rights guaranteed by the European Convention on Human Rights and other international human rights instruments".

Explanatory note

This amendment explicitly states that freedom of thought, conscience and religion should be respected without impairing the other rights guaranteed by international human rights law. This amendment reflects the wording of subparagraph 6.2.1 of Resolution 2036 (2015) cited in paragraph 4 of the explanatory memorandum to this draft resolution.

8.3take all necessary measures to combat discrimination based on religion or beliefs in all fields of civil, economic, political and cultural life.
9Given the importance of the right to manifest one’s religion or belief in the workplace, the Assembly calls on Council of Europe member States to:
9.1adopt effective anti-discrimination legislation which covers prohibition of discrimination on grounds of religion or belief and establish appropriate monitoring mechanisms to assess its implementation, in case this has not been done yet;
9.2 consider taking legislative or any other appropriate measures, in order to ensure that employees may lodge requests for reasonable accommodation of their religion or belief;

In the draft resolution, replace paragraph 9.2 with the following paragraph:

"take legislative and any other appropriate measures, in order to ensure that employees can lodge claims that their right to non-discrimination on the grounds of religion or belief has been breached;"

Explanatory note

The amendment follows paragraph 9.1 calling on States to adopt effective anti-discrimination legislation and seeks to ensure effective protection against discrimination on grounds of religion or belief. The concept of reasonable accommodation does not effectively combat such discrimination and has harmful implications for the rights of others to equality and non-discrimination.

9.3 establish appropriate adjudication or mediation mechanisms in cases of disputes related to the employer’s refusal to accommodate an employee’s request based on their religion or belief;

In the draft resolution, replace paragraph 9.3 with the following paragraph:

"establish appropriate adjudication and other adequate mechanisms to deal with claims of discrimination on the grounds of religion or belief, or any other prohibited grounds;"

Explanatory note

The amendment follows paragraph 9.1 calling on States to adopt effective anti-discrimination legislation and seeks to ensure effective protection against discrimination on grounds of religion or belief. The concept of reasonable accommodation does not effectively combat such discrimination and has harmful implications for the rights of others to equality and non-discrimination.

9.4 provide training and advice to public and private employers in order to heighten their awareness of the notions of religion and religious diversity, the specific needs of employees belonging to religious groups and how to accommodate the specific needs of such employees;

In the draft resolution, paragraph 9.4: replace the words ",the specific needs of employees belonging to religious groups and how to accommodate the specific needs of such employees" with the following words: "and the right to non-discrimination"

Explanatory note

The amendment follows paragraph 9.1 calling on States to adopt effective anti-discrimination legislation and seeks to ensure effective protection against discrimination on grounds of religion or belief. The concept of reasonable accommodation does not effectively combat such discrimination and has harmful implications for the rights of others to equality and non-discrimination.

9.5 encourage dialogue between employers, religious communities, trade unions and non-governmental organisations (NGOs) working for the protection of human rights in order to foster co-operation and tolerance;
9.6 promote the work of national human rights institutions (NHRI) on combating discrimination, including indirect discrimination based on religion or belief, and encourage them to develop training activities for both public and private employers.

BDraft Recommendation

1Referring to its Resolution ….. (2020) on the protection of freedom of religion or belief in the workplace, the Parliamentary Assembly recommends that the Committee of Ministers:
1.1identify and disseminate examples of good practice in respect of religious diversity and ensuring reasonable accommodation of religion or belief in the workplace;

In the draft recommendation, paragraph 1.1, replace the words "reasonable accommodation of" by the following words: "non-discrimination on the grounds of".

Explanatory note

International human rights law does not apply “reasonable accommodation” to freedom of religion or belief. The concept of reasonable accommodation does not effectively combat discrimination on the grounds of religion or belief and has harmful implications for the rights of others to equality and non-discrimination.

1.2reflect on the ways in which reasonable accommodation in the workplace can be best introduced in order to ensure everyone’s freedom of religion or belief;

In the draft recommendation, delete paragraph 1.2.

Explanatory note

International human rights law does not apply "reasonable accomodation" to freedom of religion or belief. The concept of reasonable accommodation does not effectively combat discrimination on the grounds of religion or belief and has harmful implications for the rights of others to equality and non-discrimination.

1.3call on those member States which have not yet done so to sign and ratify Protocol No. 12 to the European Convention on Human Rights;
1.4strengthen co-operation with the European Union, the Organisation for Security and Cooperation in Europe (OSCE) and the United Nations, with a view to promoting coherent interpretations of the freedom of thought, conscience and religion and the implementation of common policies in the field of combating discrimination based on religion or belief in the workplace.