Home > Workplace > Germany > 2002-10-10 - Federal Labour Court, n. 2 AZR 472/01

2002-10-10 - Federal Labour Court, n. 2 AZR 472/01

Workplace · Germany · Dismissal · Dress code

Dismissal of a salesperson wearing an Islamic headscarf

Key facts of the case - The claimant was born in Turkey and works for the defendant in Germany as a salesperson. In 1999 the claimant informed her employer that she will start wearing a headscarf due to her new Muslim religious belief. Therefore the defendant terminated the claimant’s employment contract by reasons of her uncommon and eye-catching clothing which was not uniform to the appearance of the other salespersons. Now the employee claims invalidity of her dismissal.

Main reasoning of the court - The court will grant the claim with the result that the contract is not terminated and the claimant is still employed. A headscarf is a religious symbol that is protected by the right to religious freedom according to Art 4 I, II GG (German Constitution). The defendant argues that a headscarf does not match with the firm style and that the salespersons need to have a uniform appearance since it would not be reasonable for the customs. An Operational disruption or economic loss need to be proved concretely by the employer, thus a simple speculation is not sufficient.
The claimant’s dismissal is invalid according to § 1 II KschG (Kündigungsschutzgesetz - Employment Protection Act) thus the claimant’s ability and skill to provide the contractual performance as a salesperson are still remaining. Moreover the employee is still able to have sales conversations even with a headscarf. The constitutional right to religious freedom according to Art 4 I, II GG is a general German principle which can only be limited by relevant constitutional rights of higher value.

Comment - On the contrary to this case a dismissal of an employee working as a teacher (for instance) in context of a public employment law (for civil servants and government employees) would be valid and legal if the employee starts wearing a headscarf at work since he/she would violate with this the state’s principle of religious neutrality.