Praying at work

CAN AN EMPLOYEE PRAY AT WORK?

Summarized: Employees have the right to pray at work as a rule. The place and time of prayer should, however, be negotiated with the employer. 

In the case that prayer at the workplace isn’t something regulated by a collective agreement (Tarifvertrag), company agreement (Betriebsvereinbarung) or specifically in an individual employment contract, which usually isn’t the case, it would then be regulated along the lines of the principle of mutual consideration according to Section 242 of the German Civil Code in conjunction with the employment contract. The employer principally has a right of instruction according to Section 106 of the Commercial Regulation Code over the employee, which allows the employer to decide the nature, place and time of work in accordance with reasonable discretion.¹ The employee can, however, make a plea for their rightful interest to pray out of the principle of mutual consideration stemming from the fundamental right to freedom of religion according to Article 4 of the German Constitution, as long as they are able to plausibly demonstrate that they consider prayers during working hours or breaks to obligatory for themselves.²  

In case the establishment of prayer cannot be carried out during break, it can be considered during work hours. According to existing case law, a short break for prayer to fulfil religious duties could pose a subjective obstacle to work performance according to Section 616 of the German Civil Code.³ A short prayer during work hours could be seen as an inability to work for a proportionally insignificant amount of time. As long as it isn’t regulated differently in the work contract, the employee may pray outside of break during work hours without losing their claim on their work compensation, given that they regard their prayer as mandatory. The employee should, however, keep in mind their employer’s right of instruction in accordance with Section 106 of the Commercial Regulation Code and should also consider the operational concerns of their employer.⁴ Correspondingly, an employer may not be able to leave his workplace without first consulting the employer. Even if the prayer is only for a short period of time, prior ‘deregistration’ (a kind of obligation to notify the employer) is generally required.⁵ This is because the employer should be able to determine the time of prayer within the religiously prescribed framework on the basis of operational requirements.⁶

Even with regards to the place of prayer is a discussion with the employer necessary, especially to prevent operational disturbance as well as to consider any legitimate objections of other employees, who do not wish to be forcibly confronted with the prayers. 

^{2 See above, margin 83.}

^{3 See above, margin 88.}

^{4 See above, margin 89.}

^{5 Dörner in Handbuch des Arbeitsrechts, 14th Edition 2018, Chapter 3, margin 493.}

^{6 State Labour Court Hamm, case from 26.02.2002, 5 SA 1582/01 margin 90.}