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Home > Workplace > Germany > 2009-01-20 - High Labour Court of Schleswig-Holstein, n. 5 Sa (...)

2009-01-20 - High Labour Court of Schleswig-Holstein, n. 5 Sa 270/08

Workplace · Germany · Dismissal · Religious beliefs

Termination of an employment contract of a Muslim employer due to refusal of filling up alcoholic drinks

Key facts of the case - The claimant is a store assistant and he works in the defendant’s drinks department. Meanwhile the claimant wished to be transferred to the fresh produce department. After being sick several times the employer offered to the claimant to retransfer him back to the drinks department. Now the employer (claimant) refuses to work in the drinks department since his Muslim religion forbids coming in touch with any alcohol. Therefore the employer terminates the employee’s contract in form of an instant dismissal and later a statutory notice of dismissal.

Main reasoning of the court - The claimant argues that the terminations are invalid. The claim has to be granted by the court. The claimant’s argumentation contains a question of faith and conscience. The right to religious freedom according to Art 4 I, II GG (German Constitution) provides the right to live and act like pursuant to the own religious principles. This contains even behaviors which are not generally followed by other believer. Thus the contract termination is invalid since the right to religious freedom has to be weighted up against the employer’s right to issue instructions. At least it is reasonable for the employer to terminate the contract in form of a statutory notice of dismissal instead of an instant dismissal. Therefore the claim has to be granted and the instant dismissal is invalid.

Comment - The employer could terminate the contract in form of a statutory notice of dismissal. See also the decision of the 2011-02-24 - Federal Labour Court, n. 2 AZR 636/09 which is the next instance.