Home > Workplace > Germany > 2003-07-30 - Federal Constitutional Court, n. 1 BVR 792/03

2003-07-30 - Federal Constitutional Court, n. 1 BVR 792/03

Workplace · Germany · Dismissal · Dress code · Headscarf

An employee cannot be dismissed because she wants to wear a headscarf

Key facts of the case - A Muslim woman who worked in the perfumery of a department store decided that she wanted to wear a headscarf at work. The employer argued that a headscarf contradicts the directive for the salespersons to dress classy and soberly. The woman was dismissed and eventually succeeded in a dismissal protection suit. The employer filed a Constitutional complaint claiming that his entrepreneurial freedom granted in Art. 12 GG (basic law) has been violated.

Reasoning of the court - The Court rejected the Constitutional complaint stating that it had so little prospect of success that it will not be heard by a full session of the Court. The previous court, the Federal Labor Court, has made no mistake in interpreting Art. 12 GG. The employer’s business interest collides with the woman’s religious freedom (Art. 4 GG). When interpreting the dismissal protection Act, these two basic individual rights have to be considered. The employer has, however, not been able to provide sufficient proof for the allegation that the woman has interfered with his business interests and entrepreneurial freedom. The judges pointed out that the woman could work in another department of the store if the employer does not want her to have direct contact with the customers in the perfumery. Thus, the woman’s right to wear her headscarf at work prevails over the employer’s entrepreneurial freedom.

Comment - In the relation between two parties under private law, those cannot directly rely on their basic rights. The basic rights do however influence their relation since they are used for the interpretation of law, as, in the instant case, of the dismissal protection Act.