Although religious and other beliefs should not play any role in employment decisions, there are a significant number of labor court decisions, including of recent date, dealing with employees’ protection against discrimination for this reason.
During the hiring process, the employer is not allowed to ask about the employee’s religion or which religious beliefs the employee follows. Should the employer nonetheless ask for such information, the employee is permitted to refuse to answer or lie. If an employer decides not to hire the employee due to his or her religious beliefs or if the employer discriminates against the employee after hiring him or her, the employee may be entitled to monetary compensation according to the German General Equal Treatment Act.
During the employment relationship, various conflicts between the employee’s religious beliefs and the employer’s interests may arise, e.g. the employee might refuse to engage in tasks contradicting his or her religious beliefs or insist on wearing religious symbols (e.g. a kippa, turban or headscarf). Let’s look at an example: may an employer instruct a Muslim, employed as shop assistant, to fill shelves with alcoholic beverages if the employee is convinced that this is contrary to the rules of his faith?
As so often, the answer is: it depends. Generally speaking, the employer may assign to the employee work which is within the scope and limits of the employment contract and applicable working conditions. Furthermore, the employer’s instructions need to be given using “reasonable discretion”. This means that the employer needs to take into account an employee’s genuine faith-based convictions if disclosed to the employer. The same applies in case of conflicts with other – non-religious – convictions about the interpretation of the world in general. The conflict then needs to be weighed against the employer’s interest in smooth business processes. Whether the employee knew from the beginning that he or she would not be able to carry out the required work will also be taken into account.
Assuming the balance of interests falls in favor of the employee, the employee may refuse to carry out the objectionable work assigned to him or her. For such time, generally speaking, the employee is not entitled to wages (“no work – no wages”). However, if the employer could also assign non-objectionable work, the employee is nonetheless entitled to his or her wages.
In a case similar to our example of a Muslim refusing to fill in shelves with alcoholic beverages, the German Federal Labor Court held that the employee was in such a severe moral conflict that the employer’s instruction was invalid. Therefore, the dismissal given for behavioural reasons – based on the refusal to act according to the employer’s instruction – was invalid. However, please note that the German Federal Labor Court also held that the employer may terminate the employment for personal reasons - if all of the tasks the employer could assign to the employee would trigger a faith conflict and the employee could therefore not be employed on a reasonable basis anymore.
Generally speaking, these rules also apply in case of a church as employer. However, the churches’ self-determination is especially protected under German law. Therefore, the balance of interests may more often be in favour of the employer. For example, although the wearing of headscarves has to be tolerated by secular employers (such as shops), a church-run institution (such as a hospital) may prohibit an employee from wearing a symbol of another religion.