Ramadan is a challenge for both employers and employees alike, e.g. if employees do not perform as usual because of their daily fasting.
The ever-changing period of the fasting month falls between 27 May and 24 June this year. For a month Muslims abstain from eating food between five o’clock in the morning and nine o’clock in the evening. This creates challenges and it cannot be ruled out that strict fasting during the day and nocturnal eating and celebrations affect the usual efficiency and good performance of employees.
In principle, every employee enjoys freedom of worship. This is also reflected by the jurisprudence of the Federal Labor Court. Smaller mistakes or minor disturbances such as lack of concentration must be accepted by the employer. If, however, the employee carries out activities which involve particular risks or normal operational processes are considerably disrupted because of the fasting, the employer may have to consider potential measures or even a termination as the last resort. As a form of compromise, fasting may have to be postponed, which, as an aside, is an option that is recognized in certain circumstances for cases of illness or pregnancy. In general, employers should plan ahead and, if possible seek to accommodate performance fluctuations in projects which are sensitive to quality or with regard to timing. If, however, the employee cannot be replaced, the employer may require that the fasting be postponed until after the expiry of a project deadline. This is in line with the principle of mutual consideration in the employment relationship. If the employee is not willing to agree to this, termination may be permitted in individual cases. Note, however, that mere adherence to the fasting period alone will not of itself justify a person-related termination of the employment relationship. Should the physical strain connected to strict fasting temporarily impede an employee from performing their usual work, the employer may be required to temporarily assign other tasks to the employee instead of issuing a warning or considering a termination. In principle, this applies equally to small businesses, where the conflict between work obligations and freedom of religion can possibly lead to greater difficulty. While an employee may in certain circumstances be justified in disregarding the employer’s directions to carry out certain tasks without being in breach of his contractual duties, the employer, in turn, would be justified in withholding pay to the corresponding extent or for the corresponding period of time. An employer might also consider allocating different working hours during the fasting month. According to the principle of equal treatment, individual employees may not be given unjustified preferential treatment. At the same time, the Equal Treatment Act prohibits discrimination against individual employees on account of their religion. In this complex situation, employers should actively engage with the employees concerned in an attempt to meet the special needs of Muslim employees.