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Ramadan 

Legal Insights 

In the Italian public debate, Ramadan has often been linked to a reduction in productivity and/or work performance, but also to issues related to the health and safety of workers in the workplace.
In the field of sport, for example, the choice of some Muslim professionals to observe the practice at certain times during competitions, especially football competitions, has often been the subject of concern by clubs.[1] Even greater problems have arisen in the field of agricultural or construction work, especially in relation to workers' refusal to hydrate during the hottest daylight hours, in deference to the practice.[2]
In other cases, questions have been raised as to whether or not the practice can be observed by adolescents and its compatibility with school and study commitments.[3]
On a legal level, therefore, the practice of Ramadan may call into question the right to religious freedom along its public ‘dimension’, i.e. its impact on the work, school and productivity environment. The practice of Ramadan is an intense time of spirituality and sacrifice that involves the daily life of Muslim believers throughout its duration. This religious practice, however, is confronted with a lifestyle, that of the majority culture, which is often over-performing and in which moments dedicated to spirituality take up little space, being mostly relegated to private life, only scarcely externalised in the workplace or study.
It is not possible to draw solutions from any specific case law on the subject since it is rather scarce in both the international and domestic spheres.[4] Especially as regards the labour sphere, it is, in fact, very likely that this type of problem is dealt with and resolved out of court, that it remains a private affair between the employee and the employer, or even that the employee tries to resolve it individually, without raising any objections, for fear that any claims may compromise the employment relationship. 
However, from a regulatory point of view, several fixed points can be identified to guide the interpreter in the attempt to reconcile the religious requirements linked to Ramadan and work. In the Italian legal system, one of these is certainly represented by religious freedom, guaranteed by Article 19 of the Constitution, but above all by the principle of the secular nature of the State, which according to constitutional jurisprudence has its foundation in Articles 2, 3, 7, 8, 19 and 20 of the Constitution and has a 'positive' nature that does not envisage the State's indifference with respect to religious affairs, but requires its activation to guarantee effective religious freedom in its collective, individual, private or public manifestations, and especially with a view to implementing confessional and cultural pluralism (Constitutional Court no. 203 of 1989).
The provisions on the prohibition of discrimination in the workplace also provide useful pointers to the debate. Italian legislation on the subject is enriched by European legislation. Particularly significant is framework directive 78/2000 on combating discrimination in the workplace, including in religious matters (transposed by legislative decree 216/2003). Here the concept of indirect discrimination is explained, referring to all those actions or provisions that, although not directly aimed at discriminating against a worker on the grounds of his or her religious faith, indirectly determine a position of disadvantage; the applicability is also sanctioned to persons who are not European citizens; the concept of 'positive action' of States aimed at effectively guaranteeing non-discrimination is recalled. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms regulates certain limits to religious freedom, reaffirming that these are within the scope of proportionality.
The regulation of Ramadan-related needs is made more complicated by the fact that unlike other systems, such as the Spanish one (Royal Decree 1384/2011, of 14 October, which develops Article 1 of the State Cooperation Agreement with the Islamic Commission of Spain, approved by Law 26/1992, of 10 November), there is still no agreement between the Muslim representation and the Italian State. However, especially in those realities where there is a high presence of Muslim workers, companies, employers and workers themselves have found efficient solutions even in the absence of specific legislation, regulating work organisation through internal agreements and adapting it as far as possible to religious needs, providing special leave on holidays, making working hours more flexible, providing special breaks for daily Islamic prayer and setting up spaces dedicated to worship in workplaces.[5]
The sensitivity of the social partners and above all of employers remains one of the most efficient solutions to date: on the one hand, it makes it possible to guarantee the safety and health protection standards that the law imposes on company owners, preventing accidents or incidents due to fasting or the practice of prayer in makeshift and dangerous places; on the other hand, it builds the loyalty of workers, avoiding discontent and preserving the smooth running of work. These are good practices that fully realise the conditions of positive secularism and implement true forms of confessional pluralism, which extend their effects even outside the workplace.
However, these are issues that would need to be institutionalised, especially since the Italian economic reality is mostly made up of small and medium-sized enterprises and these often lack the economic and organisational resources to guarantee the necessary accommodations for the exercise of religious freedom.


notes
[1] In https://www.gazzetta.it/Calcio/Champions-League/06-05-2019/champions-cominciato-ramadan-bel-problema-l-ajax-3301359937775_amp.shtml. The topic is discussed in doctrine in Biasi M., Negri A. (2019).

[2] The issue led INAIL to issue an information booklet for employers in the event that some employees observed the practice, especially if it coincided with the hottest months.

[3] In https://www.ilrestodelcarlino.it/ancona/cronaca/ramadan-ragazzino-13-anni-1.7586625 https://www.orizzontescuola.it/ramadan-a-scuola-e-salute-alimentare-cosa-dice-la-norma-quali-i-poteri-dei-sindaci-servono-linee-guida-per-aiutare-i-dirigenti/

[4] The pronouncement of the Court sez. I - Florence, 20/06/2017, no. 2482 deals with a criminal proceeding in which the criminal liability of three defendants, who are the owners of a company, is established, for violation of occupational safety regulations, on the occasion of an injury caused to an employee Z., of Muslim religion. The cultural element does not play a central role in the trial, but a witness very close to one of the defendants recalls Ramadan to justify how on those days the employee was not in the best physical condition, having also had sugar drops while carrying out work at height, due to fasting. The remark is disregarded and the defendants are convicted. The use of cultural data is specious in this case; in Tribunal sez. lav. - Milan, 30/07/2014, no. 2519, a person suffers an accident while transporting baskets of bread for the company he works for in a van and obtains compensation for the damage from Inail. The cultural element is also marginal in this case. The facts reported in the judgement show that the accident occurred at the end of Ramadan and therefore an albeit indirect connection could be hypothesised between the prolonged fatigue from the practice and the accident, lacking any adaptation of working conditions to fasting, although this element is not dealt with in the judgement. In Tribunale Ancona, 20 April 2022, the judge ordered by relative interim order that the decision on whether a teenage girl could observe Ramadan was up to her mother, who is not a Muslim. Treated in https://www.ilrestodelcarlino.it/ancona/cronaca/ramadan-ragazzino-13-anni-1.7586625

[5] Many of these agreements and practices are highlighted in a number of articles, available online:  https://st.ilsole24ore.com/art/economia/2010-08-10/affari-sprint-ramadan-080106.shtml ; https://www.ilgiornale.it/news/i-contratti-lavoro-allah-cosa-pretendono-islamici-1386779.html In doctrine, see Ricciardi Celsi (2015). In https://www.linkiesta.it/2012/07/la-fabbrica-veneta-con-moschea-aziendale/, an article of 25 July 2012, a company in Castelfranco Veneto, province of Treviso, specialising in the production of garden tools, is cited as having set up a mosque on its company premises.

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