Can a doctor oppose an abortion or euthanasia procedure because it goes against his values? Can a worker refuse to work on Saturdays to attend a religious ceremony?
The right to conscientious objection means “refusing to comply with a legal requirement (legally enforceable conduct) on the grounds that the consequences of compliance would conflict with the individual’s religious, moral or ideological convictions”. This fundamental right is provided for in Article 41(1) and (6) of the Constitution and, according to Article 18(1), it is, in principle, the employer’s responsibility to guarantee it.
In this context, the exercise of the right to conscientious objection implies a conflict with other rights of the employer, namely the right to economic initiative and freedom of company, and of other workers, such as the right to equality – the principle of proportionality being the main criterion for resolving this conflict.
Therefore, Article 41(6) of the Constitution, by stating that “The right to conscientious objection is guaranteed, under the terms of the law”, highlights the need for subsequent legislative consecration that weighs up the rights in question in the specific situation, as is the case with Law no. 16/2007, of April 17 (the Voluntary Interruption of Pregnancy Law). In other cases not provided for by separate legislation, it is up to the courts to interpret and concretize the right to object in the specific case, a task that will not always be possible.
The question therefore arises as to whether, by exercising his right to conscientious objection, a worker is in breach of his employment contract. From the outset, the employment contract is a legal transaction, the result of private autonomy. However, the employee is not in the same negotiating position as the employer, and can often accept certain provisions that he or she would not accept under equal negotiation, which makes it important to develop legislation to protect the employee in these circumstances.
Whether or not it is developed in separate legislation, the right to conscientious objection must not be invoked by the employee without more, otherwise the right itself will be trivialized. In this context, the employee has a duty to obey the employer’s orders (art. 97 and art. 128, paragraphs 1 and 2 CT (Código do Trabalho in Portuguese – Labour Code), and failure to do so may be grounds for dismissal with just cause under art. 351, paragraphs 1 and 2, point a) CT. Exception for when the order given by the employer is illegitimate.
Thus, it is debated, firstly, whether there is an abuse of the worker’s right to object to an act demanded by his employer when, at the time the contract was concluded, he was already aware of the conflict with his values, and nevertheless decided to conclude it. Secondly, in relation to conflicts after the conclusion of the contract, it is still debated whether the right can be exercised in relation to acts already expected from their work, or whether it can only be exercised in relation to acts strange to the nature of their work.
In Portugal, in Ruling no. 545/2014, the Constitutional Court considered the right of workers to be excused from urgent service shifts that coincided with Saturdays, given that, for religious reasons, this day was kept by them as a day of rest. A commentary on the ruling can be read here.
In conclusion, whether or not the right to conscientious objection implies a breach of the employment contract will depend, in the specific case, on the rules set out in separate legislation, the good faith of the worker and, finally, a judgment of proportionality.
Ana Catharina Souza e Isabela Pizzolatti @ DCM |Littler
