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relate to specific religious spaces and institutions, the terms “observance” and
“practice” do not display any spatial or institutional specificities and must be
broadly applied. The text also clearly states that the right to manifest one’s r eligion
or belief spans both private and public aspects of human life. In addition, the
Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief, 1981 (General Assembly resolution 36/55) clarifies, in
article 4, paragraph 1, that the responsibility of States to combat religious
discrimination covers “all fields of civil, economic, political, social and cultural
life”. Thus, there can be no reasonable doubt that the right to freedom of thought,
conscience, religion or belief also applies in the workplace.
32. The second general misunderstanding is more difficult to refute. It rests on the
assumption that by voluntarily signing a labour contract, employees large ly waive
their freedom of religion or belief, which they, supposedly, can fully retrieve by
abandoning their employment and taking an alternative job that accommodates their
religious needs and convictions. In other words, the voluntary nature of an
employment relationship is used as an argument to deny any interference with the
right of freedom of religion or belief and refute the possibility that serious issues of
religious freedom at the workplace can emerge as long as the complainant could
take steps to avoid the limitation, such as finding another job. Although in practice
this may hold true in some cases, the overall reasoning remains highly problematic
on a number of accounts. It is true that there is an option for the employer to define
certain work-related obligations which may actually limit an employee’s freedom to
manifest her/his religion or belief. The scope of such limitations, inter alia, depends
on the (public, private, religious, secular, etc.) characteristics of the employing
institution, as well as on the particular purpose of the employment. However,
limitations of the right to manifest one’s religion or belief, if defined in a labour
contract, must always be specific, compatible with the nature of the task to be
accomplished and proportionate to a legitimate purpose. They can never amount to a
simple waiver of the employee’s freedom of religion or belief, which after all,
enjoys the elevated status of an “inalienable” human right. Moreover, one should
take into consideration that some employees may, in reality, have little option to find
alternative employment. Pointing to the “voluntary” nature of an employment
contract and the hypothetical option of leaving the existing contract can thus be
unrealistic, depending on the specific situation. Instead, the factual availability, or
non-availability, of alternative employment can be an important empirical factor in
assessing the proportionality of specific contract-based limitations on freedom of
religion or belief.
2.
Criteria for limitations imposed on freedom of religion or belief
33. Imposing limitations on the exercise of any right to freedom is always
sensitive. On the one hand, it is a truism that neither the freedom of an individual,
nor that of a group, can be completely unlimited, since making use of one’s own
freedom might negatively affect the rights of other people or important public
interests. On the other hand, the general need for some limitations can easily
become a pretext for imposing arbitrary, discriminatory or overly b road restrictions.
Countless examples demonstrate that this also happens in the area of freedom of
religion or belief. The question of where to draw limits and how to prevent the
abuse of limitation clauses therefore requires caution and diligence. Article 18 of the
International Covenant on Civil and Political Rights outlines some indispensable
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