Following to a recent judgement of the British Courts, relating to a Sardinian citizen, residing and employed in London, who wished to participate in the most important religious festival of Sassari (Sardinia), questions have arose in relation to workers' protection against religious discrimination at the place of work.
The Italian legislation explicitly bans religious discrimination at the workplace, as provided by Legislative Decrees 216/2003 and 286/1998. The Decrees ban disparity of treatment of workers based on discrimination, including religious discrimination. Decrees also provide protection from discrimination on grounds of political orientation, gender, age and sexual orientation. This is provided by both the EU and single member states jurisdictions.
In the United Kingdom, for instance, the ban on religious discrimination at the workplace is clearly laid out in the Employment Equality Regulations (Religion or Belief) in 2010.
Contrary to what provided by the Italian jurisdiction, the British system contains no explicit reference to the right of workers of requesting, and obtaining, leave days on grounds of their religious beliefs. Leave requests must be granted in relation to the firm's necessities and the needs of all employees. However, leave requests shall not be refused on grounds of workers' religious beliefs. Requests must be individually evaluated and, should they not be granted, the refusal must be justified on grounds of the firm's organisation. A generic and insufficiently justified refusal, that can be associated with religious reasons, would result into a religious discriminatory measure causing either direct or indirect detriment to workers of a particular religious belief.
It is evident that in Europe, which has historically been permeated by Christian values, Catholic, Anglican and Orthodox, may benefit from increased protection to those afforded to other religious confessions. Sundays, Christmas and Easter holidays are only mere instances of a holiday calendar dictated by Christian festivities. The possibility of other religious confessions of celebrating religious holidays revolves around the request and consequent approval of holiday leaves.
European Catholic have nonetheless occasionally reported discriminatory measures perpetrated at the workplace on grounds of their religious belief, as in the recent Gareddu vs London Underground Ltd, carried out firstly in the British employment jurisdiction (in London) and subsequently in the competent appeal courts.
Mr Gareddu, a Sardinian engineer for the London underground railway, had requested and obtained, between 2008 and 2014, 5 consecutive weeks of annual leave (out of a total 38 days leave allowance) in order to participate in several religious festivals. One of these was the "Chandelier" Festival in Sardinia, which has been celebrated since the 16th century and is recognised as World Heritage by Unesco). During his five weeks holiday leave, Mr Gareddu would participate in 17 religious festivals across Sardinia.
In 2015, due to a managerial change within the company, Mr Gareddu was no longer allowed to profit from the usual five consecutive weeks of annual leave. The TFL employee pursued a legal action on grounds of religious discrimination against his employer, based on article 19 of the 2010 Equality Act. Both the court of First Instance (judgement of 1/12/2015) and the Appeal Court (UKEAT/0086/16/DM of 15/12/2016) did not recognise his plea.
British courts found that Mr Gareddu returned to Sardinia to enjoy the company of his relatives rather than participating to religious festivals. As reported by Evening Standards, Mr Gareddu only participated in 9 of the 17 religious festivals he intended to participate in.
Mr Gareddu believed, however, that judges had misinterpreted the value of the festivals in which he did participate in (that were as important to him as to another 100,000 devotees) and that the judgement violated his rights and constituted an evident religious discrimination.
Mr Gareddu's employers based his defence, which was embraced by the judges, on the fact that the company policies did not provide annual leave periods of longer than two weeks, proving the absence of any discriminatory attitude based on religious grounds.
What is to be done, should you believe you are the victim of discrimination at the workplace based on religious or any other grounds?
First, contact the Human Resources department, or the trade union or conciliation representative, to report the discriminatory behaviour and proceed, wherever possible, to the controversy resolution within the company, preserving the fiduciary nature of the working relationship.
In the event that this does not lead to the resolution of the controversy, or no other solution appears to be possible, a legal action should be pursued at the Employment Tribunal:
- In the United Kingdom, it is possible to promote a legal action within three months of the occurrence of the discriminatory behaviour or of the termination of the working contract. The Tribunal will rule after hearing both parties. However, before resorting to the Tribunal, it is necessary to resort to the Advisory Conciliation and Arbitrary Service (Acas), which shall attempt to mediate between the employee and the employer in order to find an extrajudicial conciliation. A second ruling can be requested and it is possible to appeal at the Employment Appeal Tribunal (EAT)
- In Italy, conciliation with the employer may be attempted. However, should the discriminatory behaviour persist or no mediation has been sought by the employer, it is necessary to resort to the Labour branch of the Civil Court and promote an appeal aimed at persuading the Court to issue an order to stop the discriminatory behaviour, compensate for any damage and remove any consequent effect. The Court ruling (ordinanza) issued by the Court can be brought to the Appeal Court and, wherever provided, to the Supreme Cassation court.
Finally it is possible, both in Italy and in the United Kingdom, or in any other Country that has signed the ECHR to proceed to a last appeal in the European Court of Human Rights on ground of the violation of article 14 of the European Constitution for the Protection of Human Rights and the Fundamental Freedoms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.