Unlimited rights do not exist within the context of labour relations, so there might be a conflict between a right to manage and organise a company and the fundamental right to religious freedom. The first one is framed under the organizational powers of the employer, the second one is protected by national and European regulations.
What concerns us here is to understand the concept of religion in its broadest sense, which encompasses both the internal forum, that is, the fact of having convictions or beliefs, and the external forum or the public manifestation of religious faith. Due to the nature of the services provided by companies, it is easy to encounter the existence of various dress codes, uniformity catalogues or neutrality policies. Their objective is to maintain a neutral and impartial image of the company in front of different clients and organisations.
Before establishing any type of practice, an employer should keep in mind that European legislation distinguishes between acts of direct and indirect discrimination.
Direct and indirect discrimination
Direct discrimination occurs when a person is or could be treated less favourably on religious grounds.
Indirect discrimination happens when an apparently neutral practice places persons having a certain religion at a particular disadvantage, unless it is objectively justified and the means of achieving this practice are appropriate and necessary (Directive 2000/78).
At the time of introducing neutrality practices in a company, and so that they are not confused with indirect discrimination, the employer must consider several aspects:
- The purpose of the practice. What is the employer looking to achieve by the implementation of these practices? We may confront two options: a mere aesthetic purpose, such as imposing a dress code that does not provide an explicit prohibition on carrying external religious symbols. Alternatively, we may face a policy of internal neutrality that expressly prohibits all employees of a company from bearing visible signs of their religious convictions.
- The scope of the practice. It is crucial to differentiate if the practice applies directly to a worker who wants to carry a visible religious sign. Or if it is a neutrality policy that has general applicability to all employees. In the first case, we would be facing a violation of the fundamental right to religious freedom. In the second case, there is no direct discrimination. However, the Courts reserve the right to consider whether, in light of the particular circumstances of each case, we could find ourselves facing indirect discrimination against employees with religious conviction.
On very few occasions, the Courts in Spain have considered that a difference in treatment towards a worker can be justified when the religious characteristic constitutes an obstacle to the performance of the labour activity. Depending on the nature of the company’s professional activity, minimum requirements can be imposed; for example, in professions facing the public that require a uniform (hotel receptionists, etc.).
So that the religious freedom within the context of labour relations does not collide with the normal functioning of a company, it is advisable that the latter should implement a legitimate policy of religious neutrality.
This article is not considered as legal advice