Labour law

„Labour Courts do not only resolve disputes between employees and employers over employment rights, but also similar disputes arising from contractual relationships of development aid workers, volunteers and disabled persons working in sheltered workshops. “

- Quote from the German Federal Labour Court's website

No trainee position because of headscarf

Labour Court of Berlin, judgment of 28.03.2012 - 55 Ca 2426/12

A Muslim woman applied for a job vacancy of a dental assistant in a dental office. On the application photo she wore a headscarf, which covered her entire hair. During the interview she was asked if she could imagine removing the headscarf during the working hours. Her answer was negative. Although she would have been hired for the dental office, an actual placement was not considered for the reason that wearing a headscarf did not suit the dress code or/and that a headscarf is no neutral garment. Thus, she was rejected. 

Such a conduct constitutes discrimination on grounds of religion which is forbidden according to § 7 par. 1 AGG. The present case cannot be considered as an exception of § 8 par. 1 AGG, according to which the employer may treat the plaintiffs differently when there are special job requirements because of the nature of the work or the conditions of its exercise.

The plaintiff shall receive compensation of 1,470.00 EUR.

 

Having a "Positive attitude towards the goals of a Catholic institution" does not necessarily mean having to be baptized.

Labour Court Oldenburg, judgment of 10.02.2016 - 3 Ca 334/15

The bearer of a Catholic hospital advertised the job position of a personnel officer and required a "positive attitude towards the foundations / aims of the Catholic institution". The plaintiff applied for the vacancy. After an interview, the Catholic priest decided to hire the plaintiff. During a further conversation between the parties, the manager of the hospital asked the plaintiff for her confessional membership. The plaintiff replied that she did not have such a membership and that she was not baptized. Thereafter she was informed that she could not be employed.

This behavior on the part of the Catholic hospital constitutes discrimination within the meaning of Section 7 subparagraph 1 of the AGG in conjunction with Section 1 and Section 6 subparagraph 1, sentence 2 of the AGG. The plaintiff was not hired solely on the grounds that she was not baptized and did not own a confessional membership. Pursuant to § 9, subparagraph 1 of the AGG, a different treatment on grounds of religion in employment is permitted by a body assigned to a religious community where a particular religion constitutes a justified professional requirement with regard to its right of self-determination or the nature of the activity.

According to the "basic order of ecclesiastical service within the scope of ecclesiastical employment relations" and the constitutionally protected right of self-determination of the churches according to the law, Art. 140 of the German Constitution in conjunction with Art. 137 subparagraph 3 of the WRV, the Catholic employer may presuppose membership of the Catholic religion. However, this applies only to employees who have pastoral, catechetical, educational or managerial tasks. Only employees of a person are required to be ‘loyal’. For this, neither a confessional affiliation must be given, nor must the employee be baptized.

The denominational institution of the hospital was sentenced to pay out a compensation of
€3,856.67 and a compensation for damages (§ 15 (1) AGG) of € 3,900.00 due to the discrimination caused by religion in the appointment procedure.

The appeal of the Catholic institution was rejected by the Labour Court in Niedersachsen on 14 December 2016 - 17 Sat 288/16.

 

Blanket prohibition of the use of headscarf for Muslim teachers in public schools is unconstitutional

Federal Constitutional Court, judgement of 27.01.2015 - 1 BvR 471/10 and 1 BvR 1181/10

The complainants, born in Germany, of Turkish descent and Muslim faith, are employees in public schools in North Rhine-Westphalia. During their work they wore a headscarf because of their own desire and religious conviction. After the entry into force of the School Act of North-Rhine Westphalia, the school authorities requested the teachers to take off their headscarf as a result of the provisions of section 57, subparagraph 4 of the NWC.

When they did not comply, they received a warning, and a complainant was even dismissed. On the other hand, they sued individually, with the labour courts, then appealed to national labour courts, until finally they reached the Federal Labour Court, where the North German-Westphalian School Act was deemed legitimate in prohibiting the wearing of headscarves:

"The wearing of the Islamic headscarf could jeopardize the school peace and give the impression that the complainant is against the human dignity, the equality of man and woman according to Article 3 of the Basic Law, the basic freedoms or the liberal democratic principle."

The two complainants filed appeals against constitutional complaints against decisions of the Federal Labour Court, which refer to this legal basis of the newly enacted School Act of North Rhine-Westphalia.

The Federal Constitutional Court objects to the Federal Labour Court in the detailed decision and establishes a violation of the fundamental right under Article 4 subparagraphs 1 and 2 of the Basic Law. A prohibition which would suffice to affect the peace of the state or the neutrality of the State is inappropriate and disproportionate with respect to the freedom of belief and freedom of religion; after all, there is no concrete danger to the former.

The right of individuals to direct their entire conduct to teachings of their faith and to act according to this conviction is protected by Article 4 of the Basic Law. "In this openness [against different religions and worldviews], the free state of the Basic Law preserves its religious and ideological neutrality."

Section 57 subparagraph 4 of the North Rhine-Westphalian school law constitutes a serious interference with the freedom of belief and confession, and is therefore not compatible with the constitution, i.e. void.

 

Undenominational Nurses cannot be fired due to the fact that they have no denomination

Labour Court Aachen, judgment of 13.12.2012 - 2 CA 42236/11

The plaintiff, a professional nurse, applied to a job advertisement, published by the defendant - a Catholic Church community that operates a hospital. During the interview, he was praised for his experience and qualifications, and the head of the station informed him that there were no reservations about his attitude. The question of his religious affiliation did not arise. It was only when it was learned that the plaintiff held no denomination that he was informed that this was a problem and that he could therefore not be hired.

There is a different special treatment reserved for religion and its conduct, justified according to Section 9 subparagraph 1 of the AGG. However, according to the basic order of the Catholic Church, confession is only a prerequisite if it is a question of the faith and morality of the Catholic Church, or whether educational or executive tasks are part of the activity in question. The activity of a nurse requires only a loyalty, that is, the tasks in the sense of the church have to be fulfilled.

The defendant did not consider the overall condition of the nurse’s place within the job. In failing to do so, they solely focused on the lack of a religious affinity. The disadvantage is therefore not justified according to Section 9 subparagraph 1 of the AGG in connection with the basic order of the Catholic Church.

The defendant was sentenced to pay the plaintiff a compensation payment of € 3,000.

© Büro zur Umsetzung von Gleichbehandlung e.V. 2011