C Explanatory memorandum
by Mr Davor Ivo Stier, rapporteur
1 Introduction
1.1 Procedure
1. The motion for a resolution
entitled “The protection of freedom of religion or belief in the
workplace”
Note was referred to
the Committee on Legal Affairs and Human Rights on 12 October 2018
for report.
Note The committee appointed me as rapporteur
at its meeting in Paris on 13 December 2018.
2. At its meeting in Strasbourg on 1 October 2019, the Committee
held a hearing with the participation of:
- Ms Katayoun Alidadi, Assistant Professor of Legal Studies,
History and Social Sciences Department, Bryant University, Rhode
Island, United States (via video-conference);
- Mr Javier Martínez-Torrón, Professor of Law, Complutense
University, Madrid;
- Ms Nazila Ghanea, Associate Professor in International
Human Rights Law, University of Oxford (via video-conference).
3. Moreover, in June 2019 I sent a questionnaire to the European
Centre for Parliamentary Research and Documentation (EPCRD) in order
to get information on the state of Council of Europe member States’ legislation
concerning measures aimed at ensuring that the freedom of religion
or belief is observed at the workplace. The replies received from
national delegations have been summarised and presented in the Appendix
to my information note of 6 November 2019; both documents were declassified
by the Committee at its meeting in Berlin on 15 November 2019 (AS/Jur
(2019)43 and AS/Jur (2019)43 Appendix declassified of 22 November
2019).
1.2 Issues
at stake
4. The above-mentioned motion
for a resolution makes a reference to the Parliamentary Assembly’s
Resolution 2036 (2015) on “Tackling intolerance and discrimination in Europe
with a special focus on Christians”.
Note The resolution
called upon the member States of the Council of Europe to “promote
reasonable accommodation within the principle of indirect discrimination
so as to ensure that the right of all individuals under their jurisdiction
to freedom of religion and belief is respected, without impairing
for anyone the other rights also guaranteed by the European Convention
on Human Rights.”
Note The
signatories of the motion are of the view that, three years after
the adoption of
Resolution
2036 (2015), it is crucial to consider what steps have been taken
by member States to implement the recommendations contained in it,
whether by introducing policies that would allow for an informal
mechanism of reasonable accommodation or laws that would provide a
formal mechanism of reasonable accommodation of religion or belief
in the workplace. The Assembly should therefore review the progress
that has been made, with a view to identifying good practice amongst
Council of Europe member States on how best to provide reasonable
accommodation in relation to religious belief.
5. In today’s Europe, the question of the co-existence of members
of different religious communities, atheists, agnostics and sceptics
has become an issue of vital importance. Although historically Europe
might be characterised as a stronghold of Christianity, with many
countries having long-standing Jewish communities; it is now increasingly
secular and with greater religious diversity, with growing number
of Muslims in many States as well as diverse groups representing
“new religions”. While recognising the role of Christianity in shaping
Europe’s culture and identity and acknowledging the contribution
of Judaism as well as the influence of Islam, the current situation
entails new challenges for policy-makers and faith communities,
with an increasing need to find ways of accommodating religious
beliefs at the workplace. The wearing of religious symbols such
as the cross for Christians or the head scarf for Muslim women has
caused controversy in some countries. Moreover, in some societies,
believers may encounter difficulties in their everyday lives in
relation to religious holidays, prescribed times for prayer, conscientious
objection of medical staff to abortion, dietary laws or other requirements
stemming from their religious beliefs.
6. The Council of Europe has a body of binding and non-binding
standards in the area of religious freedom. The Assembly has taken
position on many issues relevant to religious diversity, tolerance
and State secularity in a number of resolutions and recommendations.
Note Therefore,
I will only focus on the concepts of freedom of religion and belief
and the prohibition on discrimination on the ground of religion,
as enshrined in the European Convention on Human Rights and other
international legal instruments, as well as on the notion of “reasonable accommodation”
to which the motion refers. The committee has already referred to
this notion in 2011, when it adopted the report by its former member
Mr Tudor Panţiru (Romania, Socialist Group) on “Combating all forms
of discrimination based on religion”
Note, which subsequently led to
the adoption of
Resolution
1846 (2011) and
Recommendation
1987 (2011) by the Assembly’s Standing Committee on 25 November
2011. In September 2015, the committee considered again issues related
to freedom of religion when adopting its opinion on the report of
the Committee on Culture, Science, Education and Media on “Freedom
of religion and living together in a democratic society”.
Note On
the basis of the latter report, on 30 September 2015, the Assembly
adopted
Resolution 2076
(2015). As noted above, it was also an important element in
Assembly
Resolution 2036
(2015). In my report I will focus only on issues related to
freedom of religion or belief in the workplace and will not take
into account the discrimination on grounds of religion or belief
in the provision of services, although these issues are closely
interrelated.
2 International and European legal framework
for freedom of thought, conscience and religion
2.1 Scope
of the freedom
8. The freedoms enshrined in Article 9 paragraph 1 of the Convention
have both an internal and an external aspect. The internal aspect
protects the right to hold beliefs or not and to change one’s religion
or belief as a matter of individual conscience. It is an absolute
right, which cannot be subject to limitations.
9. The external aspect protects the freedom to manifest one’s
religion or belief alone or in community with others, in public
or in private, in worship, teaching, practice and observance. It
may be subject to restrictions enumerated in Article 9 paragraph
2 of the Convention. The restrictions must be “prescribed by law”
and “necessary in a democratic society” in the interests of pursuing
a legitimate public aim. The permissible aims are public safety,
the protection of public order, health or morals, or the protection
of the rights and freedoms of others.
10. As a qualified right, Article 9 paragraph 2 of the Convention
gives States a wide ‘margin of appreciation’ in deciding whether
and to what extent a limitation of the right to manifest one’s religion
or beliefs is “necessary”.
Note The
extent of the margin of appreciation, whose application in practice
remains subject to the supervision of the European Court of Human
Rights (“the Court”), depends upon the particular circumstances of
the case.
11. Issues of religious freedom may come into conflict with other
rights guaranteed by the Convention. In relation to Article 10 of
the Convention, for example, the Court addressed a situation where
the local Roman Catholic diocese objected to the screening of a
film that it considered blasphemous, resulting in the authorities seizing
and confiscating the film and bringing criminal proceedings against
the organisers of the screening (see the
Otto-Preminger-Institut
v. AustriaNote judgment).
Other rights might also come into conflict with religious beliefs:
the right to respect for private and family life (Article 8 of the
Convention), for example in connection with certain medical treatment
issues (for example, the refusal of blood transfusions by many Jehovah’s Witnesses);
the right to freedom of assembly (Article 11), for example when
believers gather at prayer meetings; the right to a fair trial (Article
6 of the Convention), for example in connection with State recognition of
decisions of ecclesiastical bodies or the right to education (Article
2 of Protocol No 1), for example when parents consider that the
State does not respect their right to ensure that their child’s
education is in conformity with their own religious convictions
(
Lautsi v. Italy,
Note concerning
display of the crucifix in State school classrooms).
2.2 Prohibition
of discrimination based on religion or beliefs
12. Article 26 of the ICCPR enshrines
the principle of equality before the law and stipulates that all
persons are entitled without any discrimination to the equal protection
of the law. According to this provision, “the law shall prohibit
any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground”, including religion.
According to the 1981
Declaration
on the elimination of all forms of intolerance and of discrimination
based on religion or beliefNote, discrimination based on religion constitutes
“an affront to human dignity and a disavowal of the principles of
the Charter of the United Nations” (Article 3) and the right to
freedom of thought, conscience and religion “shall be accorded in
national legislation in such a manner that everyone shall be able
to avail himself of such rights and freedoms in practice” (Article 7).
Moreover, “States shall take effective measures to prevent and eliminate
discrimination on grounds of religion or belief in the recognition,
exercise and enjoyment of human rights and fundamental freedoms
in all fields of civil, economic, political, social and cultural
life” (Article 4 paragraph 1) and they “shall make all efforts to
enact or rescind legislation where necessary to prohibit any such
discrimination, and to take all appropriate measures to combat intolerance
on grounds of religion or belief in this matter” (Article 4 paragraph
2).
13. Discrimination on the ground of religion or belief is also
prohibited under Article 14 of the Convention
Note and
Article 1 of Protocol No 12 to the Convention.
Note The
State may not, without any objective and reasonable justification,
treat in different way persons in substantially similar situations.
It enjoys a certain margin of appreciation in assessing whether
and to what extent the existing differences justify different treatment; however,
the inequality in treatment must pursue a legitimate aim and respect
the criterion of reasonable proportionality
Note.
Moreover, a failure, without an objective and reasonable justification,
to treat differently persons whose situations are significantly
different may also be contrary to the principle of non-discrimination.
Note
14. Within the European Union’s legal framework, the
Employment Equality Directive
2000/78 addresses various forms of discrimination in employment,
including on grounds of religion or belief.
Note It establishes general
rules concerning putting into effect equal treatment in employment
and occupation, prohibiting both direct and indirect discrimination
on grounds of,
inter alia,
religion or belief (Recital 12, Articles 1 and 2). As defined in
the Directive, direct discrimination is considered to occur “where
one person is treated less favourably than another is, has been
or would be treated in a comparable situation” and indirect discrimination –
“where an apparently neutral provision, criterion or practice would
put persons having a particular religion or belief (…) at a particular
disadvantage compared with other persons (…)” (Article 2 paragraphs
1 and 2). The Directive also admits the possibility of lawful differentiation
based on a “proportionate, “genuine and determining occupational
requirement”, provided that the objective is legitimate (Article
4 paragraph 1). Therefore, it allows a difference of treatment based
on a person’s religion or belief by churches and other organisations
whose ethos is based on religion or belief; such institutions may
require individuals working for them to act in good faith and with
loyalty to their ethos (Article 4 paragraph 2).
2.3 Relevant
case-law of the European Court of Human Rights
15. A variety of cases have been
examined by the Court under Article 9 of the Convention. They concerned specific
issues such as compulsory military service and religious beliefs,
the obligation to pay “church tax”, wearing of religious symbols
or clothing, children’s education and parents’ religious convictions,
proselytism or recognition, organisation and leadership of religious
communities.
Note For
the purpose of this report, only cases concerning freedom of religion
or belief in the workplace will be considered below.
16. Up until the 1990s, the European Commission of Human Rights
Note consistently
refused to apply Article 9 of the Convention to conscientious objectors
to military service. The Commission found that the Convention allowed
States to choose whether or not to recognise conscientious objection
to military service, since Article 4 paragraph 3 b) of the Convention
refers to “conscientious objectors in countries where they are recognised”. Since
2011, the Court has developed a new line of jurisprudence. Since
the
Bayatyan v. Armenia judgment, the
Court now considers that conscientious objection to military service
may fall in the ambit of Article 9 if “it is motivated by a serious
and insurmountable conflict between the obligation to serve in the
army and a person’s conscience or his deeply and genuinely held
religious or other beliefs”. The Court examines complaints concerning
conscientious objectors in the light of the particular circumstances
of the case and has found violations of Article 9 of the Convention
in a number of cases concerning criminal convictions for refusals
to perform military service by Jehova’s witnesses, non-religious
pacifists and people referring only to ‘moral values’.
Note
17. The Court has also considered various issues relating to manifestation
of freedom of thought, conscience and religion at the workplace,
although not explicitly from a ‘reasonable accommodation’ perspective.
These cases have included a requirement to take a religious oath
in order to start practicing as a lawyer (
Alexandridis
v. Greece – violation of Article 9), an obligation to
swear an oath on the Christian Gospels in order to take a seat in
Parliament (
Buscarini and Others v. San
Marino – violation of Article 9) or proselytising to
air force service personnel (
Larissis
and Others v. Greece – no violation of Article 9, as
the State was entitled to protect lower-ranking airmen from “improper
pressure”). It also considered the issue of religious holidays. For
example, in the case of
Kosteski v. “The
former Yugoslav Republicof
Macedonia”, the applicant, a Muslim, complained about
having been fined for taking a day’s holiday without permission
to celebrate a Muslim religious festival (no violation of Article
9 and of Article 14 taken in conjunction with Article 14). In
Francesco Sessa v. Italy, the applicant,
a member of the Jewish faith and a lawyer by profession, complained
about the judiciary’s refusal to adjourn a hearing set down for
the date of a religious festival; the Court found no violation of
Article 9 of the Convention considering that the refusal was justified
on grounds of the protection of the rights of others (and in particular
the right to proper administration of justice).
Note
18. As regards disputes between religious organisations and their
employees, the Court has examined many of such cases under Article
8 of the Convention guaranteeing the right to respect for private
and family life and has accepted that an employer whose ethos is
based on religion or on a philosophical belief may impose specific
duties of loyalty on its employees. According to the Court, “a decision
to dismiss based on a breach of such duty cannot be subjected, (…),
only to a limited judicial scrutiny exercised by the relevant domestic
employment tribunal without having regard to the nature of the post
in question and without properly balancing the interests involved
in accordance with the principle of proportionality.”
Note Referring
to these principles, in
Siebenhaar v.
GermanyNote, the
Court examined under Article 9 of the Convention the dismissal of a
childcare assistant employed by a Protestant parish but belonging
to another religious community whose teachings were found incompatible
with the Protestant Church doctrine. It did not find a violation
of Article 9 of the Convention, having considered that the labour
courts had balanced thoroughly the interests of all parties involved.
19. The judgment
Eweida and Others
v. the United Kingdom of January 2013 seems to be the
most relevant in the context of determining the scope of the State’s
positive obligation to secure respect for the rights to freedom
of religion in the workplace. In this case, the Court dealt with
alleged discrimination against four applicants (all Christians)
in the workplace. Two applicants – Ms Eweida, a British Airways
employee, and Ms Chaplin, a geriatric nurse – complained about their
employers’ refusals to allow them to wear necklaces with Christian
crosses at work. The other two applicants – Ms Ladele, a marriage
registrar, and Mr McFarlane, a relationship counsellor – complained
about sanctions taken against them by their employers for refusing
to perform services which they considered to condone homosexuality,
a practice they considered incompatible with their religious beliefs
(the fourth applicant was dismissed from his job and, as a result
of the impugned disciplinary proceedings, the third applicant also
lost her job). The applicants complained that domestic law had failed
adequately to protect their right to manifest their religion and
invoked Article 9 of the Convention taken alone and/or in conjunction
with the prohibition on discrimination under Article 14 of the Convention.
The Court recalled that a “manifestation” within the meaning of
Article 9 of the Convention must be “intimately linked to the religion
or belief”. On that basis, it considered that all four applicants
had indeed been seeking to manifest their religion, in the sense
of Article 9; and that their complaints related to interferences
with that right. If an individual complains of a restriction on
freedom of religion in the workplace, “rather than holding that
the possibility of changing job would negate any interference with
the right, the better approach would be to weigh that possibility
in the overall balance when considering whether or not the restriction
was proportionate”. Therefore, the Court examined whether a fair
balance had been struck between the “competing interests of the individual
and of the community as a whole”, bearing in mind the margin of
appreciation enjoyed by the State.
Note
20. In the case of first applicant (Ms Eweida), the Court found
that the domestic authorities had not sufficiently protected her
right to manifest religion (violation of Article 9). The domestic
courts had given too much weight to the employer’s wish to project
a certain corporate image; furthermore, the employer had previously
allowed employees to wear items of religious clothing (e.g. turbans
and hijabs), and subsequently found itself able to amend its policy
so as to allow visible wearing of religiously symbolic jewelry.
As regards the second applicant (Ms Chaplin), the Court did not
find a violation of the Convention, considering that the obligation
on the applicant to remove her cross was not disproportionate to
the legitimate public interest in protecting health and safety on
a hospital ward. Concerning the third applicants (Ms Ladele), the
Court found that the employer’s requirement pursued the legitimate
aim of protecting equal opportunities for those of different sexual
orientation and recalled that differences in treatment based on
sexual orientation required particularly serious reasons by way
of justification. Although the requirement to register same-sex
unions had been introduced at a later stage, the local authority’s
policy aimed to secure the rights of others which were also protected
under the Convention. The State enjoyed a wide margin of appreciation
in striking a balance between competing Convention rights and, in
the circumstances of the case. The courts’ upholding of the disciplinary
measures brought against the applicant fell within this margin of
appreciation (no violation of Article 14 taken in conjunction with
Article 9). Finally, as regards the fourth applicant (Mr McFarlane),
the Court noted that, when he had taken up his job, he knew that
he would not be able filter his clients on the basis of their sexual
orientation. It again found that the employer’s action was aimed
at providing services without discrimination and that it was within
the State’s margin of appreciation to uphold a measure pursuing
this aim that resulted in the applicant’s dismissal (no violation
of Article 9 taken alone or in conjunction with Article 14).
21. In November 2015, the Court gave its judgment in the case
of
Ebrahimian v. France, in
which the applicant, a hospital social worker, complained under
Article 9 of the Convention about the decision not to renew her
employment contract because of her refusal to stop wearing the Muslim
veil. The Court found no violation of the said provision, considering
that the French authorities had not exceeded their margin of appreciation
in giving priority to the requirement of neutrality of the State
deriving from the principle of secularism set out in Article 1 of
the French Constitution and the principle of the neutrality of public
services. The Court also accepted the French health and safety regulations
which were putting more emphasis on the rights of others (and in
particular patients) than on the right to manifest one’s religious
beliefs.
Note A
similar case, concerning the refusal of a German hospital held by
a private company to continue the employment of a Muslim nurse wearing
a headscarf is now being examined by the Court.
Note Interestingly, in a case
against France (the so-called case of
Baby
loup crèche), the United Nations Human Rights Committee
has recently taken a different position on the ban on wearing a
headscarf in the workplace.
Note It is also worth recalling in this
context that, as regards complaints by teachers complaining about
prohibition to wear head scarfs, the Court has found such cases
manifestly ill-founded, and, consequently, inadmissible. In particular
in
Dahlab v. Switzerland,
the Court found that “in a democratic society the State was entitled
to place restrictions on the wearing of the Islamic headscarf if
it was incompatible with the pursued aim of protecting the rights
and freedoms of others and public order”.
Note Unfortunately, in
Barik Edidi v. Spain,Note a case concerning
the wearing of a
hijab by
a lawyer in a court room, the Court has not ruled on the merits
for formal reasons (due to the non-exhaustion of domestic remedies).
2.4 Relevant
case law of the Court of Justice of the European Union
22. Recently, the Court of Justice
of the European Union (“the CJEU”) delivered several judgments concerning
discrimination on grounds of religion or belief following national
jurisdictions’ references for a preliminary ruling concerning interpretation
of Directive 2000/78. Firstly, it examined the issue of wearing
an Islamic headscarf at work in the cases of
Samira
Achbita & Centrum v. G4SNote and
AsmaBougnaoui
& ADDH v. Micropole SA.
Note
23. In the first case, Ms Achbita, a Muslim, who had worked as
a receptionist, was dismissed by the defendant company, G4S, after
she had decided to wear an Islamic headscarf, which was in contrast
with the company’s policy of neutrality. The Belgian Court of Cassation
referred to the CJEU the question of whether the ban on wearing
a Muslim headscarf, imposed by a company which prohibited all employees
from wearing outward signs of religious beliefs at work, constituted
direct discrimination in light of Article 2 para. 2a) of Directive
2000/78. The CJEU concluded that the ban imposed on the applicant
did not constitute direct discrimination, since the company’s internal
rules were applied in an undifferentiated way to all employees who came
into contact with its customers. An employer’s wish to project an
image of neutrality towards customers falls within the scope of
the freedom to conduct a business under Article 16 of the Charter
and is, in principle, legitimate. According to the Court of Justice,
in this case, the prohibition of wearing religious signs was strictly necessary.
The national court could still consider whether GS4 might have offered
Ms Achbita a post not involving any visual contact with customers,
instead of dismissing her.
24. A second CJEU case, AsmaBougnaoui & ADDH v. Micropole SA, arrived
at a different outcome. Ms Bougnaoui, a design engineer, had been
dismissed from her employment because she wore an Islamic headscarf
while in contact with customers of the company. The French Court
of Cassation asked the CJEU whether Article 4 paragraph 1 of Directive
2000/78 could be interpreted as meaning that the wish of a customer of
an information technology consulting company no longer to have that
employer’s services provided by an employee wearing an Islamic headscarf
constituted a “genuine and determining occupational requirement”, and
thus an exception to the prohibition of discrimination. The Court
of Justice underlined that only in very limited circumstances may
a characteristic such as religion or belief constitute a genuine
and determining occupational requirement. Therefore, the willingness
of an employer to take into account the wishes of a customer no
longer to have the services of that employer provided by a worker
wearing an Islamic headscarf could not be considered a genuine and
determining occupational requirement in the meaning of Article 4 paragraph
1 of Directive 2000/78.
25. Interestingly, the approaches of the Advocates General in
the two cases differed considerably. In her opinion on the
Ashbita case, Advocate General Kokott
made a distinction between certain grounds for discrimination such
as gender, age and sexual orientation, related to ‘individuals immutable
physical features or personal characteristics’ and ‘modes of conduct
based on a subjective decision or conviction, such as the wearing
or not of a head covering’.
Note On
the other hand, in her opinion on the
Bougnaoui
and ADDH case, Advocate General Sharpston gave greater
weight to the consideration of religious identity. She stressed
in particular that: “(…) to someone who is an observant member of
a faith, religious identity is an integral part of that person’s
very being. The requirements of one’s faith – its discipline and
the rules that it lays down for conducting one’s life – are not
elements that are to be applied when outside work (say, in the evenings
and during weekends for those who are in an office job) but that
can politely be discarded during working hours. Of course, depending
on the particular rules of the religion in question and the particular
individual’s level of observance, this or that element may be non-compulsory
for that individual and therefore negotiable. But it would be entirely
wrong to suppose that, whereas one’s sex and skin colour accompany
one everywhere, somehow one’s religion does not.”
Note
26. In the
Vera Egenberger v. Evangelisches
Werk für Diakonie und Entwicklung judgment
Note,
the CJEU has considered an unsuccessful application for a job advertisement
posted by German association which pursued charitable and religious
purposes. The requirements for the candidates included
inter alia the membership of a Protestant
church or a church belonging to the Working Group of Christian Churches
and identification with the diaconal mission. The applicant, Ms Egenberger,
was of no denomination, and was not invited to an interview. The
German Federal Court asked the CJEU,
inter
alia, whether Article 4 paragraph 2 of Directive 200/78
could be interpreted as meaning that an employer, such as the defendant
in this case, might itself authoritatively determine whether a particular
religion of an applicant, by reason of the nature of the activities or
of the context in which they were carried out, constituted a “genuine,
legitimate and justified occupational requirement”, having regard
to the employer’s ethos. The CJEU replied positively to this question
and stressed that, if need be, it must be possible for such an assertion
to be subject of effective judicial review.
27. Moreover, in the
Cresco Investigation
GmbH v. Markus Achatzi case
Note, the CJEU has considered
the issue of additional pay for work on Good Friday for an applicant
not belonging to any of the churches concerned by an agreement according
to which Good Friday is a paid public holiday. Employees who were
members of the said churches and who were working on Good Fridays
were entitled to special ‘public holiday pay’. Mr Achatzi, an employee
of Cresco, was a member of none of those churches. Having worked
on Good Fridays, he claimed to be discriminated against by the denial
of the public holiday pay. Following a preliminary reference of
the Austrian Supreme Court, the CJEU replied that, in light of Articles
1 and 2 of Directive 2000/78, the national legislation allowing
such a differentiation constituted direct discrimination on grounds
of religion.
3 The
notion of ‘reasonable accommodation’
3.1 The
scope of the notion
28. The concept of “reasonable
accommodation”
Note is often invoked in debates
concerning handling religious diversity at the workplace. It first
emerged in the United States and Canada (Québec) in equality laws
as means of handling such diversity. Article 2 of the
UN
Convention on the Rights of Persons with Disabilities of 2006 defines it as “necessary and appropriate modification
and adjustments not imposing a disproportionate or undue burden,
where needed in a particular case, to ensure to persons with disabilities
the enjoyment or exercise on an equal basis with others of all human
rights and fundamental freedoms”. Moreover, on the basis of Article
5, paragraph 3, “in order to promote equality and eliminate discrimination,
States Parties shall take all appropriate steps to ensure that reasonable
accommodation is provided”. In Europe, this concept has been applied
to tackle discrimination against people with disabilities: European
Union Directive 2000/78/EC obliges employers to provide reasonable
accommodation for this category of persons. Article 5 of the Directive
defines ‘reasonable accommodation’ to mean that “employers shall
take appropriate measures, where needed in a particular case, to
enable a person with a disability to have access to, participate
in, or advance in employment, or to undergo training, unless such
measures would impose a disproportionate burden on the employer.
This burden shall not be disproportionate when it is sufficiently
remedied by measures existing within the framework of the disability
policy of the Member State concerned.” The notion of reasonable
accommodation refers to that of “indirect discrimination”, which
occurs when an apparently neutral rule causes particular disadvantages
to a person, or to a group sharing certain characteristics, as compared
to others. “Reasonable accommodation” means that, in certain cases,
it will be necessary to adopt appropriate measures to prevent superficially
neutral rules from being discriminatory in effect, because their
application is detrimental to certain categories of persons.
Note So
far as freedom of religion is concerned, it may be applied to religious
prescriptions concerning e.g. annual leave, working hours, the wearing
of religious clothing and/or symbols, specific dietary needs, etc.
29. The former United Nations Special Rapporteur on freedom of
religion or belief Mr Heiner Bielefeld has already found good practices
in this field. Although he noted that legislators and courts had
been reluctant to apply this principle as a legal entitlement and
that employers were encouraged to use it as a managerial tool outside
the realm of law, he hoped that the UN Convention on the Rights
of Persons with Disabilities could serve as ‘a general door opener
in this regard’ and advocated for combining a legal approach to
reasonable accommodation with a more pragmatic managerial approach.
Note In his opinion, reasonable accommodation should
be understood as a part of the legal responsibility of States. Its
denial could amount to discrimination if taking accommodating measures
did not amount to a disproportionate or undue burden, depending
on the circumstances of the case. Individuals should be able to
resort to legal remedies in order to challenge any denial of reasonable
accommodation. The call for adopting practical measures to ensure
reasonable accommodation has also been reiterated by the current
UN Special Rapporteur on freedom of religion or belief, Mr Ahmed
Shaheed, who has stressed that “there is a need for greater sensitivity
to more obscure forms of discrimination, such as the prima facie
‘neutral’ rules prescribing certain dress codes in public institutions”
or similar problems arising with regard to dietary rules, fasting,
public holidays, labour regulations, public health norms or other
issues.
Note
30. Although the Court has not referred to the concept of reasonable
accommodation as such, it has applied analogous reasoning in certain
cases. In
Glor v. Switzerland,
the applicant had been penalized for not performing military service,
even though this was due to a physical disability. The Court, referring
to the UN Convention on the Rights of Persons with Disabilities,
found that the Swiss authorities had failed to provide for special
forms of civilian service for persons in the applicant’s situation.
In
Vartic v. Romania (No. 2), the
Court found that the prison authorities’ refusal to provide the
applicant with a vegetarian diet, as required by his Buddhist religious
beliefs, was in breach of Article 9 of the Convention, as the State
had not taken steps to strike a fair balance between the interests
of the prison authorities and those of the applicant, namely his
right to manifest his Buddhist religious beliefs, or provided reasonable
justification for its failure to do so.
Note
31. The issue of reasonable accommodation has been referred to
by the Assembly on many occasions. In
Resolution 1846 (2011) on “Combating all forms of discrimination based on religion”,
the Assembly called on member States to “strive to accommodate the
needs of different religions and beliefs in a pluralist society, provided
that any such measures do not infringe the rights of others”.
NoteResolution 2036 (2015), mentioned by the signatories of the motion for a resolution
being at the origin of this report, focused on the situation of Christians
in Europe and called on member States to “promote reasonable accommodation
within the principle of indirect discrimination”.
Note In
Resolution 2076 (2015), the Assembly again invited member States to seek “reasonable
accommodations” and to “make sure that religious communities and
their members are able, in compliance with the law, to (…) manage
welfare institutions (hospitals, workshops for persons with disabilities, homes
for elderly people, nursery schools, etc.) and schools and places
of education” and that they exercise their right to freedom of expression.
Note
3.2 The
pros and cons of reasonable accommodation
32. The pros and cons of reasonable
accommodation have already been analysed by the UN former Special Rapporteur
on freedom of religion or belief Mr Bielefeld.
Note He focused on six typical objections:
that reasonable accommodation
a) would
privilege minorities at the expense of equality; b) would endanger
neutrality; c) would open the floodgates to trivial demands; d)
would dilute corporate identity; e) would create a risk of conflicts
in the workplace and f) would entail undue economic and managerial
burdens for employers.
33. Objections have been raised to several of the arguments, in
particular:
a) reasonable accommodation encourages implementation of
substantive equality, which is always diversity-friendly and complex;
it thus contributes to a more diverse society to the benefit of
all;
b) although a policy of neutrality is of particular importance
for the public service and other State institutions (such as the
police or the judiciary), the term ‘neutrality’ can have very different
meanings and can sometimes imply a policy of non-commitment towards,
and non-recognition of religion or belief and can lead to restrictive measures
in this area, both within public and private institutions. Nevertheless,
neutrality can also entail a policy of fair inclusion of people
of diverse religious or belief orientation, and from this perspective
reasonable accommodation can become a positive factor of ‘neutrality’;
c) reasonable accommodation does not mean that all kinds
of personal tastes or preferences should be accommodated, but it
should rather help “to avoid situations in which an employee would
otherwise be faced with discriminatory treatment and a serious,
existential dilemma”;
d) the interest of maintaining corporate identity is usually
reconcilable with accommodating religious diversity, which requires
“a degree of flexibility from both employers and employees, as well
as tolerance from third parties and the society at large”;
e) the mere possibility of conflicts between staff members
is often taken as a pretext to reject any accommodating measure,
while reasonable accommodation “presupposes a more demanding concept
of complex equality”;
f) it results from the definition of reasonable accommodation
included in the UN Convention of the Rights of Persons with Disabilities
that too far-reaching requests should be rejected, if they cause
disproportionate economic or other costs for the employer (which
underlines the potential of this approach to help ensure proportionality
between any interference and the pursuit of a legitimate aim). Moreover,
experience shows that accommodating measures are nearly or totally
cost-free. In the long run, they can also enhance the reputation of
an institution or company and reinforce the sense of loyalty of
the staff.
34. The question of whether a duty
of reasonable accommodation should be included in the law has been discussed
at length by many commentators.
Note Especially
in the United Kingdom, the supporters of this idea believe that
it would be easier to bring claims of discrimination, as the individual
concerned will not have to show the ‘group disadvantage’ required
under the legislation on indirect discrimination. The creation of
such a duty would also create clarity for employees with a religion
or a belief and they would feel more comfortable and less confrontational
in making their requests. However, the creation of a ‘right to request
accommodation’ would privilege religion over other protected characteristics.
Moreover, it might lead to a risk of conflicting standards as between
the right as it applies to religion, and the right to request flexible
working for other workers. Although the duty of reasonable accommodation
is included in the legislation of Canada and the United States of
America, the practice in the two countries differs considerably
because of differences in assessing the reasonable character of
the accommodation, and in particular of the “undue hardhip” to the employer.
The standard of the review is lower in the United States: the duty
does not apply if the employer will be caused even a minimal hardship
by accommodating the employee’s religion.
Note
35. At the hearing that took place before the Committee on 1 October
2019, all the invited experts were in favour of introducing a duty
of reasonable accommodation for employers. As stressed by Professor
Alidadi such a mechanism could ensure a more substantive form of
equality and protect minorities. He felt that the opposition to
this idea was of political and legal nature. From the political
perspective, legislators were not friendly to religion. From the
legal one, there was a clash between the progressive and the conservative,
as the latter feared that such a mechanism would also be later claimed
by LGBTI persons. However, according to Ms Alidadi, there was no
conflict between reasonable accommodation for religious minorities
and the rights of LGBTI persons. Professor Martínez-Torrón stressed
that employers had to accommodate their employees’ requests because
religion was a part of a person’s identity. Professor Ghanea underlined
that without reasonable accommodation religious minorities might
be discriminated.
4 States’
practice
36. The Court’s analysis in the
Eweida and Others v. the UK judgment
Note showed that a majority of
the Council of Europe member States did not regulate the wearing
of religious clothing or symbols in the workplace, including for
civil servants, and that only five States (out of twenty-six studied)
prohibited completely the wearing of religious symbols or clothing
by civil servants (France, Germany, some cantons of Switzerland, Turkey
and Ukraine). Equinet (European Network of Equality Bodies), which
brings together 46 organisations from 34 States, all of which are
Council of Europe member States, has collected some data in this
respect. Its 2018 report on ‘
Faith
in Equality: Religion and Belief in Europe’ indicates that States still have difficulties with striking
a balance between individuals’ or groups’ rights enshrined in Article
9 paragraph 1 of the Convention and the legitimate interests such
as public safety, public order, health or morals or the protection
of the rights and freedoms of others. The highest number of cases
concerning discrimination based on religion have been reported in
the field of employment, especially in the area of recruitment and
selection, wearing of headgear and religious symbols, religious
harassment in the workplace, justified occupational requirement,
opting out of certain tasks, work patterns and conflicts of rights.
Note
37. I have gathered additional information on the measures taken
to ensure “reasonable accommodation” in Council of Europe member
States in particular thanks to a questionnaire sent to the EPCRD.
27 member States of the Council of Europe – Albania, Belgium, Croatia,
Cyprus, the Czech Republic, Estonia, Finland, France, Georgia, Germany,
Greece, Hungary, Italy, Latvia, Lithuania, Montenegro, Norway, Poland,
Portugal, Romania, Serbia, the Slovak Republic, Spain, Sweden, Switzerland,
Turkey and the United Kingdom – have answered to my questions. Two
observer States (to the Assembly) – Canada and Israel – have also
replied to my questionnaire. For various reasons, Slovenia has decided
not to do so. Since a detailed summary of those answers has been
declassified by the committee (see AS/Jur(2019)43 Appendix declassified),
I will only briefly present my conclusions here.
38. Most Council of Europe member States have replied negatively
to the question concerning the existence of a formal mechanism for
the reasonable accommodation of religion or belief in the workplace.
Many States have indicated that ‘accommodation’ is ensured in practice,
although this term is not explicitly mentioned in the law. That
is, in particular, due to the fact that a refusal to accommodate
may lead to discrimination in some cases. The United Kingdom even
referred to a report of the
Equality
and Human Rights Commission (EHRC)
Note stating that a duty
of reasonable accommodation would not lead to substantial additional
protection and the existing law enabled employers to make an accommodation
and address employee’s request sufficiently. The examples of accommodating
measures referred mainly to the issues of wearing of religious clothing
and/or symbols, religious holidays, providing special food and praying
time in the office. Some States (Belgium, France and Switzerland)
made a clear distinction between public and private institutions
as regards the requirements related to the wearing of religious
clothing and/or symbols (with these requirements being stricter in
the former institutions). Interestingly, Turkey has recently lifted
the ban on wearing such clothes and/or symbols by public officials.
In the lack of a formal mechanism for reasonable accommodation,
many States have given examples of different complaint mechanisms,
often referring to the existing legislation on non-discrimination
and/or equal treatment. Some of the replies stressed that it was
primarily up to each employer to decide how requests for accommodation
should be addressed. Thirteen Council of Europe member States have
provided information on cases where questions of reasonable accommodation
have been raised before courts (Belgium, Croatia, France, Germany,
Hungary, Latvia, Norway, Portugal, Spain, Sweden, Switzerland, Turkey
and the United Kingdom).
39. Canada has provided useful information about the functioning
of its reasonable accommodation mechanism. Under the
Canadian
Human Rights Act, the
Canadian
Charter of Rights and Freedoms and under special provincial and territorial human rights
legislation – all employers have a duty to ensure reasonable accommodation.
The employer’s duty to accommodate exists with respect to any ground
of discrimination (for example religion, sex or disability) and
has its limits where accommodation is not possible because it would cause
“undue hardship” (fr.
contrainte excessive)
to the employer. For the last 30 years, courts and human rights
bodies have examined numerous cases concerning discrimination on
grounds of religion and requests for reasonable accommodation in
the workplace (see, for example, the case of
Ontario
Human Rights Commission v. Simpsons-SearsNote).
5 Conclusion
40. Article 9 of the Convention
is considered one of the foundations of a “democratic society”,
guaranteeing the right to freedom of thought, conscience and religion.
It protects all religious groups, as well as non-believers, equally.
The scope of its protection of the right to manifest religion or
belief varies according to the circumstances and is subject in particular
to competing legitimate interests of a “democratic society” (including the
protection of the rights of others). The Court has examined various
aspects of the right to manifest freedom of thought, conscience
and religion at the workplace, but its case-law remains fragmented
and does not cover all conflicting situations that may appear in
practice. In addition to this, within the European Union, some issues concerning
freedom of religion or belief in the workplace have been recently
examined by the CJEU under the provisions of Directive 2000/78,
which prohibits direct and indirect discrimination in employment.
As regards the wearing of the Islamic headscarf at work, the CJEU
seems to have adopted an even more cautious approach than the Court
and to allow more space for employers to ban the wearing of religious
clothing and/or symbols.
41. In contrast with Canada and the United States of America,
there is no formal right to reasonable accommodation in any European
country. However, depending on the circumstances of the case, Council
of Europe member States try to take accommodating measures by using
various legal mechanisms, and in particular those based on anti-discrimination
or equality laws. In member States of the European Union, such laws
implement Directive 2000/78. Therefore, the legal framework in Europe
is very complex. Moreover, the need to accommodate employees’ religion
differs from country to country, depending on the scope of the presence
of certain religious communities (especially that of Muslims). As
the replies to the questionnaire show, some countries are much more
concerned than others as regards ensuring ‘neutrality’ at the workplace. While
over a dozen countries have provided me information about court
cases concerning problems in ensuring respect for freedom of religion
or belief at work, many countries have not reported such cases at
all.
42. European law and policy makers are increasingly called upon
to tackle problems stemming from an ever-greater religious diversity.
While the State has to remain neutral vis-à-vis different religions
and beliefs, it should seek to accommodate the needs of those who
adhere to various religions, including both “majority” and “minority”
religions. Individuals and communities holding religious beliefs
should not be marginalized. Introducing a formal mechanism for ensuring
“reasonable accommodation” of religious or non-religious beliefs at
work, as is already an established obligation with respect to persons
with disabilities, provides a framework for avoiding discrimination
based on religion or belief in the workplace that is both conceptually
clear and relatively easy to apply in practice. However, there are
pros and cons as regards introducing a legal obligation of reasonable
accommodation, which must be cautiously assessed. States should
consider introducing a legal duty to accommodate taking into account
existing legal mechanisms, the efficiency of the non-discrimination or
equality legislation and employees’ religious needs. Employees should
at least have a possibility to request measures that would accommodate
their religion or belief and should be given a possibility to contest
the denial of such measures before an adjudicating or mediating
body. This is of paramount important as in some situations, the
lack of such a mechanism can lead to concealed discrimination of
certain religious groups and to violations of their human rights.
