Exceptions

• Author: Lorenzo Cachón
• Pages: 46-60

46

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Spain, national legislation provides for an exception for genuine and determining

occupational requirements.

Law 62/2003 (Article 34(2)) reproduces the occupational requirement exception of Article

4(1) of the directive, which provides that: ‘Differences based on a characteristic related to

any of the causes referred to in the previous paragraph [all the grounds of Directives

2000/43 and 2000/78] do not amount to discrimin ation when, owing t o the nature of the

specific professional activity concerned or the context in which it is carried out, such a

characteristic constitutes an essential and determinant professional requirement, provided

that the objective is legitimate and the requirement is proportionate’ .

Prior to the t ransposition of the directives into domestic Spanish law, Article 17(2) of the

Workers’ Statute stated that ‘exclusions, reservations and preferences in respect of

unrestricted employment may be established by law’.

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Spain, national law provides for an exception for employers with an ethos based on

religion or belief.

Article 34 of Law 62/2003 provides for non-discrimination in employment on the ground of

religion or belief and amends other laws, such as the Workers’ Statute, in this respect, but

makes no reference to organisations with an ethos based on religion or belief.

For organisations with a specific ethos, Article 6 of the Organic Law on Religious Freedom

states: ‘Registered churches, faiths and religious communities shall be fully indep endent

and may lay down their own organisational rules, internal and staff byelaws. Such rules,

as well as those governing the institutions that they create to accomplish their purposes,

may include clauses safeguarding their religious identity and own personality as well as

due respect for their beliefs, without prejudice to the rights and freedoms recognised by

the Constitution and in particular those of freedom, equality and non-discrimination’. The

third additional provision of Organic Law 2/20 06 on Education regulates the situation of

teachers of religion at private (religious) centres. In the opinion of the author of this report,

taking into consideration CJEU C-414/16 and C-68/17, these provisions are in keeping with

Article 4(2) of Directive 2000/78.

As Puente (2004) points out, the scope of these clauses is the regulation of employment

relationships in institutions with a specific ethos. In practice, the exemptions operate at

three stages of the employment relationship: first, access to employment; secondly, during

the performance of an activity within the organisation; and thirdly, dismissal from that

activity. At the first stage, before the signature of th e labour contract, the general rule is

that religious reasons cannot be claimed for preventing anyone from exercising their right

to work. Moreover, according to Article 16(2) of the Constitution, nobody may be compelled

to make statements regarding his/her r eligion, belief or ideology, which means that th ere

is a prohibition against asking about the ideology or beliefs of the worker. However, in

these organisations, questions about religion and belief, and the requirement that workers

accommodate their private lives to the ethos of the enterprise, seem genuine and

legitimate if the activity to be performed is linked to the ideological orientation pursued by

the organisation. This relates to the situation of religious education teachers in state

schools. At the second stage, during the employment relationship, th e employees have to

show respect for the ideology of the enterprise. This respect for the ideology also includes

out-of-work activities, if they affect this ethos. At the third stage, although the general rule