Religious time accommodation claims and non-discrimination in the workplace: portuguese constitutional case law in comparative perspective

Portuguese courts are relative newcomers to legal debates on the rights of religious minorities and the accommodation of religiously based claims. Religious diversity is only now becoming visible as a result of recent immigration, and Portugal’s traditional Catholicism is largely naturalised as part of the cultural landscape. Religiously based claims are rare in the case law of Portuguese courts and Portugal has never been brought before the European Court of Human Rights (ECtHR) for breach of Article 9 of the European Convention on Human Rights (ECHR), either alone or in conjunction with Article 14. Two Constitutional Court judgments from 2014, however, brought Portugal up to speed with the international and foreign case law on indirect discrimination and reasonable accommodation of religion in the workplace. The cases concerned the interpretation of Article 14 of the 2001 Religious Freedom Act, which explicitly allows for leaves of absence from work, classes and exams for religious reasons. Two members of the Seventh-Day Adventist Church (a factory worker and a Public Prosecutor) had invoked Article 14 to request leave of absence from work between sunset on Friday and sunset on Saturday, but the judicial and administrative courts interpreted the provision literally and denied its applicability to the appellants’ cases as they were claiming leave from shift work which had fixed entry and exit times and was therefore understood as not falling under the definition of ‘flexible working hours’ within the meaning of Article 14(1)(a). The Constitutional Court held that such a strict interpretation would render Article 14 unconstitutional for breach of Article 41 of the Constitution and issued an interpretative ruling of Article 14(1)(a) so that it is understood to also comprise shift work. These judgments are arguably the highest point in the Portuguese Constitutional Court’s ‘multicultural jurisprudence,’ to borrow a phrase from Marie-Claire Foblets and Alison Dundes Renteln. For one, the Court sided with religious freedom, affirming the rights of religious minorities against a formalistic and restrictive interpretation of the statutory framework. Also, the Court engaged critically with different external influences, openly distancing itself from the former European Commission of Human Rights and the ECtHR case law on religious time, while seemingly endorsing the ‘reasonable accommodation’ rationale developed by the US and Canadian courts. This paper discusses the Constitutional Court’s reasoning against the backdrop of academic debates on indirect discrimination and reasonable accommodation of religion in the workplace, and by comparison with judgements by international and domestic courts in similar cases.

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