Although the majority of the Maltese population still defines itself as Roman Catholic, our society today includes a number of people with increasingly different religious traditions and beliefs.

Claims of religious discrimination at the workplace are still a rare occurrence. However, different religious beliefs can create tricky workplace scenarios, with employers finding it hard to decide where to draw the line.

Employers in other European countries are facing increasingly complex scenarios related to religious beliefs and the workplace. This happens more so in countries such as France, which advocate strict secularism, or laïcité as it is called in French, in the public sphere.

The European Convention of Human Rights, the European human rights-bible (or rather ‘holy text’ for political correctness’ sake), provides the right to ‘freedom of thought, conscience and religion’ which includes the right to manifest one’s religion or belief “either alone or in community with others, and in public or in private”. However, this right is subject to “limitations necessary in a democratic society” which among others includes “the protection of the rights and freedoms of others”.

In light of all this, does the employer have the right to limit a person’s “freedom of thought, conscience and religion” to safeguard and protect the interests of his company? Can a Maltese employer in any way restrict an employee’s right to manifest or practise his religion at the place of work?

The answer to the above question is “yes” – but with a lot of ‘ifs’ and ‘buts’.

Employees around Europe know this, which is why many have challenged employer’s decisions to ban the wearing of headscarves at work, or the ‘no-jewellery policy’ in a hospital which banned an employee from wearing a cross around her neck. Contentious decisions included employees being forced to work on weekly days of worship or religious feasts, or employees refusing to perform work-related acts (e.g. an abortion) due to their personal religious beliefs.

The curtailing of religious freedom can only be excused when it is proportionate, genuine and required due to the nature of the job

All the above are usually resolved by attempting to strike a balance between the right to manifest one’s faith and the employer’s right to protect his company’s brand, identity or operations.

It is important to note that the Maltese Equal Treatment in Employment Regulations provide that notwithstanding legal provisions prohibiting discrimination on a number of grounds – including religious belief – behaviour shall not be considered discriminatory if it is carried out “by reason of the nature of the particular occupational activities concerned, or if the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement” which is proportionate. In short, this means that the curtailing of religious freedom can only be excused when it is proportionate, genuine and required due to the nature of the job.

An excellent example of such genuine requirements can be seen in the European Court of Human Rights case Eweida v the UK, where four employees from different industries challenged the decisions of a UK Industrial Tribunal. Two of the applicants had been fired for refusing to remove a small cross which they wore around their neck at work. Mrs Eweida was a passenger-handling employee with British Airways, while Ms Chaplin was a healthcare worker in a state hospital. In its decision, the Court accepted Mrs Eweida’s pleas of discrimination but turned down Ms Chaplin’s, providing that while a discreet cross could not really cause serious prejudice to British Airways’ reputation and corporate image, Ms Chaplin’s cross had to be removed due to health and safety reasons involving healthcare staff working with patients.

Similarly in the Azmi case, a school’s decision to suspend a primary school teacher who refused to take of her niqab (veil covering the head and face) at work was confirmed as being legitimate, since the English Industrial Tribunal believed that the niqab hampered her interaction with students.

A potential Maltese case of the sort would obviously depend on the courts’ interpretation of the law and the case at hand. However, employers would do well to take legal advice to ensure the proper handling of such sensitive and delicate situations.

Thomas Bugeja works in the employment law department at Fenech & Fenech Advocates.

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