The Employee's Right to Observe the Religious Worship Day: Position of the Portuguese Constitutional Court

The present article seeks to carry out along the lines of interpretation of the recent Portuguese Constitutional Court case law on the possibility of an employee to observe a worship day imposed by religious beliefs. In this approach to the question, considerations on the subject of the relationship between religious freedom and labour relations will inevitably arise. We intend to draw conclusions of practical application from the court decisions on the matter of freedom of religion. Keywords—Freedom of Religion, Religion Beliefs, Workplace, Worship Day. I. THE WORSHIP DAY IMPOSED BY RELIGION: APPROACH TO THE QUESTION ESIDES sacralising certain places, people and objects, religion also sacralises times. For the homo religiosus, time is not homogeneous, given the fact that certain periods of time are considered to be sacred due to their religious meaning. In several religions we come across the idea that a certain portion of time ought to be destined to the compliance of acts of faith, hence, a great majority of religious beliefs dedicates a specific week day for rest and worship. For the Jews, Saturday (Sabbath) is their worship day, in which the Decalogue takes place. In the Jewish tradition, the Decalogue corresponds to the fourth commandment. This happens because, according to the Torah, God rested from the work of creation on the seventh day. Sabbath must be observed from Friday sunset to Saturday sunset. It should be noted that some Christian groups, such as the Seventh Day Adventists follow this Jewish tradition. To the believers of the Christian churches, the worship day corresponds, generally, to the first day of the week, insofar as it is the day of the Resurrection of Christ, that is, Sunday (dies domenicus). For the Muslims, the worship day is Friday, since it is on the sixth day of the week, around noon, that they gather at the mosque for prayer. However, the level of imperativity of the religious rule to observe one day of worship varies through the different religious traditions. The rules that the different religions impose upon their believers in terms of weekly rest days may have repercussions in the compliance or non-compliance of Susana Sousa Machado is Lecturer at Polytechnic Institute of Porto – School of Technology and Management of Felgueiras and Researcher at Center for Research and Innovation Business Sciences and information Systems, Portugal; Phd. Candidate at the Faculty of Law University of Santiago de Compostela, Spain; and is also Researcher in the Labour Law area (e-mail: [email protected]). the acts of faith when dealing the working life of the employee-believer. This is a potential issue for conflict between employers and employees, especially for employees belonging to religious groups rather than the Catholic Church, given the fact that, in Portugal, the setting for the weekly rest day is embedded in the religious and cultural roots of the Christian tradition of the dies dominicus. II. OBSERVANCE OF THE WORSHIP PERIODS IMPOSED BY THE RELIGION AND EMPLOYMENT RELATIONSHIP The employee may be confronted – by virtue of his/her religious beliefs with the need to observe a specific weekly rest day which does not coincide with the provisions of labour law. Numerous difficulties resulting from the multiplicity of religious beliefs may arise in a large enterprise in order to adjust the different requirements in terms of non-working periods on religious grounds. Through the celebration of an employment contract, the employee places his labour force at the service of the employer. Nevertheless, the time-assigned availability of the employee when serving the employer has its limits. To start with, due to physiological and social reasons and, therefore, the duration of working time is regulated in order to protect the health and the social life of the individual. The employee may wish to observe a specific worship day that does not coincide with the weekly rest day or the timeschedule assigned to him by the employer. At this point a conflict arises between the employees’ right to religious freedom (Article 41 of the Constitution of the Portuguese Republic CPR), the freedom of economic initiative (Article 61 of the CPR) and the freedom of entrepreneurial organization (Article 80 of the CPR) of the employer. Religious freedom, in its external dimension, that is, insofar as the right to act according to one’s convictions is not an absolute right and, even in the framework of the working relationship, the employee’s religious freedom may suffer some compensation prompted by other interests and rights at stake. III. PREVIOUS QUESTION: OBSERVANCE OF WORSHIP PERIODS BY THE EUROPEAN COURT OF HUMAN RIGHTS In the case law of the European Court of Human Rights (ECtHR) cases involving compliance with a given day for worship due to religious reasons have long been analyzed which is not always easily articulated with the labour obligations of the religious and working individual. The Employee's Right to Observe the Religious Worship Day: Position of the Portuguese Constitutional Court Susana Sousa Machado B World Academy of Science, Engineering and Technology International Journal of Social, Behavioral, Educational, Economic, Business and Industrial Engineering Vol:9, No:3, 2015 761 International Scholarly and Scientific Research & Innovation 9(3) 2015 scholar.waset.org/1999.10/10000690 In te rn at io na l S ci en ce I nd ex , L aw a nd P ol iti ca l S ci en ce s V ol :9 , N o: 3, 2 01 5 w as et .o rg /P ub lic at io n/ 10 00 06 90 Amongst the decisions of the EctHR we highlight the case of Tuomo Konttinen v. Finland, December 3rd 1996 [1], in which an employee of the Finnish railway company began to profess the religion of the Adventists of the Seventh Day and was fired for refusing to work after sunset on Friday invoking a conflict between the obligations of his religion, which require compliance of the Sabbath and his work schedule. However, the European Commission of Human Rights, who was responsible for deciding on the appeal, understood that what was at stake was a dismissal due to non-compliance of the duty of attendance for work and not a leave from work that could be framed within the employee’s religious freedom. Moreover, it was considered that, in case of incompatibility between religion and work, the employee should always have the possibility for resigning and that would be the final guarantee of his right to religious freedom. This decision was not exempt from criticism since the reasoning does not correspond to the scale of the problem, to the extent that it does not bestow any relevance whatsoever to the protection of religious freedom. It is accompanied by the understanding that the EctHR adopted a narrow view of the problem insofar as it absolutely disregarded the religious beliefs of the employee, regardless of Konttinen’s claim coming to be accepted or not. It is a “reductive and unsatisfactory response” to such a complex problem [2], which was based on an “overly simplistic” reasoning [3]. The argument that the plaintiff had the possibility of resigning his job and, therefore, the right for religious freedom was not violated led to a “great perplexity” of the authors [4]. As highlighted by some Portuguese authors this decision is totally diverse from the decisions of North-American and Canadian courts on the same question [5]. IV. PORTUGUESE LEGAL FRAMEWORK OF WORSHIP PERIODS The Portuguese Constitution protects the religious freedom seeking that, in article 41, the freedom of religion is inviolable. Besides that the principle of equality is granted in article 13 in the away that “No one may be privileged, favored, prejudiced, deprived of any right or exempted from any duty for reasons of ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation”. In Portugal, until the entry into force of the Law of Religious Freedom – LRF, approved by the Law 16/2001, of June 22, the minority religious denominations did not have the possibility to enjoy the weekly rest day on any other day rather than Sunday. Likewise, they did not have the possibility of not attending work or being absent from work due to religious reasons. It was the Article 14, paragraph 1 (LRF), which came to foresee the right of leave from work, establishing that the employees, state officials and other public entities, as well as employees on an employment contract are entitled, upon request, to suspend work on the weekly rest day, on festivity days and in the time periods prescribed by their religious beliefs under the following conditions: a) work on flexitime; b) being members of a registered religious community which has sent, the previous year, to the Government member responsible for the matter, indication of the mentioned days and time periods in the current year; c) to fully compensate the respective period of work. The interpretation being put forward by the Portuguese case law in relation to the Article 14 of the LRF was not always consistent with the fundamental right to religious freedom as foreseen on the Article 41 of the CPR, and a literal and restrictive understanding of the words of the common legislator was favoured, especially in what concerns the notion of “flexitime”. This understanding of matters deserved the recent intervention of the Constitutional Court on two occasions and in order to interpret the rule of Article 14, paragraph 1 a) of