Labor & Employment Law Strategic Global Topics – Summer 2017 edition: Religion in the workplace

The globalized and diverse workplace of today brings many persons together coming from very different backgrounds, cultures, and religions.

The freedom to practice one’s religion is a constitutional or legislative right in many countries around the world. When it comes to the workforce and the workplace, these issues may raise some concerns for employers. Indeed, are there limits to the actual practice of religion during working hours? What can the employer allow and what limits might there be in curtailing the practice of religion in the workplace?

These are many questions with which a multinational must now deal on a regular basis. In this edition of the EY Labor and Employment Law hot topics guide, we explore these issues and look to find the right balance between the employee’s rights and the employer’s rights.

Excerpt – Germany: Religion in the workplace, does anything go?

Managing and integrating diverse religious beliefs at work can be a hard job for an enterprise at times. Sometimes, beliefs (and rituals) of the employees may collide with work requirements and targets. For example, an employee insisting on multiple breaks for religious prayers may, ultimately, not be able to carry out contracted services. Here, the Regional Labour Court of Hamm understandably held that the employer may intervene (LAG Hamm, judgment dated 18 January 2002 — 5 Sa 1782/01). On the other hand, the same court, only shortly thereafter, held that an employee may well have the right to leave his workplace for (short) prayers, as long as it can be reasonably expected from the employer to adapt his job routine without hampering the overall organization.

In certain situations, an employee may refuse to comply with instructions or even carry out given tasks if due to recognizable religious reasons. One example of a case acknowledged by court was an engineer refusing to assist in the development of weapons for chemical warfare due to the (Christian, among other religions) commandment “You should not kill.” In such a case, disciplinary sanctions would be inappropriate. However, as long as the employee refuses to carry out his tasks, he cannot, of course, claim remuneration.

Even though, in principle, there shall be no remuneration without services rendered, there may still be cases where employees may keep their remuneration claims nonetheless. For example, should the employee be required to fulfil religious duties, such as attending their church wedding, there may be a claim to paid special leave of absence.

What can prove problematic, though, is when the employer seeks to prohibit religious behavior for personal reasons, such as wearing a religious scarf, as is common with Muslim women. A number of court decisions have already been given, mostly in favor of the women. The reason is that only in few cases will the mere wearing of a scarf jeopardize the work of the organization or otherwise impact the employer (the Kopftuch-Urteil or “scarf case”: BAG, judgment dated 10 October 2002–2AZR 472/01). But — here as elsewhere — should the employer be able to prove that the wearing of a scarf would hinder the employee in duly rendering her services, cause economic damages or otherwise negatively affect the company’s reputation, the employee ultimately may face dismissal.

In any case, clothing policies must be appropriate. Where the religious belief of an employee demands the wearing of certain clothing, the employer in turn has to respect this and seek to arrange for a suitable approach for both parties. But again, when objective and legitimate requirements such as accident prevention oppose, this will be different. As an example, the requirement for wearing a helmet will not necessarily justify prohibiting the wearing of a scarf or other items, as long as the helmet still can be worn safely and properly. But should a given combination turn out to be problematic — imagine combining a turban and helmet — the employer may obviously insist that the helmet shall prevail.

In the field of public administration, things are even more complicated. Generally, civil servants are subject to stricter requirements than employees in the private sector. The reason is that Germany sees itself as a religiously and ideologically neutral country and may not declare itself in favor of or against a certain religion. Therefore, it is no longer permissible to hang crucifixes in German classrooms (BVerfG, judgment dated 16 June 1995 — BvR 1087/91) and, therefore, it is problematic when teachers, representing the public educational system, wear Islamic head scarves (BVerfG, judgment dated 24 September 2003 — BvR 1436/02). In this regard, most federal states have meanwhile enacted laws imposing on teachers of public schools an obligation to religious neutrality with regard to their choice of clothing.

On 12 May 2017 the Bundesrat (Federal Assembly) passed a law providing that civil servants as well as soldiers are no longer allowed to veil their faces during work, as the religiously or ideologically motivated veiling of the face would contradict the duty of neutrality of government representatives. Under the same law, veiled women are legally obliged to uncover their faces in order to prove their identity, for instance during a passport control.

These, and other cases, show the potential conflict that may arise when people want to express their religious beliefs at work.

Employers often face challenges when it comes to accommodating different religious faiths and values, and using them positively in their enterprises.

Also see: EY Labor and Employment Law Guide.

EY Legal Services Contacts:

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Roselyn Sands – Global Labor and Employment Law Leader