CAN MUSLIMS REFUSE TO DO CERTAIN THINGS ON GROUNDS OF RELIGION, SUCH AS STACKING ALCOHOLIC DRINKS IN A SUPERMARKET?
Summarized: An employer must take into account that an employee may not be able to perform certain tasks for religious reasons. Therefore, a refusal to perform those tasks could be permissible in individual cases. However, the employer can dismiss a worker if they cannot reasonably keep them employed because of their refusal to work. If an employee already knew of the certain task at hand before they concluded the contract, they must address it during contract negotiations. They will not be able to oppose their employer’s instructions later on.
According to Section 106 of the Commercial Regulation Code, it is the right of the employer to determine the nature, place and time of work with fair discretion, as long as these work conditions aren’t stipulated by an employment contract, the provisions of a company agreement, an applicable collective agreement or relevant statutory provisions.1 A supermarket owner could then accordingly instruct a store assistant to sort alcoholic beverages onto the shelves.2 The employer is however required to practice this right with fair and reasonable discretion, in a way that they weigh the most important circumstances of each individual case next to each other and give due consideration to the interests of both the parties. In light of the freedom of religion guaranteed by Article 4 of the German Constitution, it is mandatory for the employer to consider the concrete religious and conscientious conflicts a Muslim employee might face, which regard certain actions as religiously forbidden, such as working with alcohol.3 When applicable, the refusal to work on part of the employee would therefore not be contrary to duty.4
If the employer is already aware upon conclusion of the contract that they won’t be able to fulfill their contractual obligations from the start because of their religious convictions, they may not be able to legally oppose the employer’s instructions later on.5 In case moral conflict arises only during the employment period because of the employee’s newfound decision to live in strict accordance with their faith, they may resist any orders at the workplace if necessary.6 If the employer suggests a compromise which takes into account their moral dilemma satisfactorily, the employee may be barred from refusing to work.7
A lawful refusal to work on part of the employee doesn’t, however, generally protect them from an individual termination.8 When an employer can no longer continue to keep an employee within the contractually agreed range of services or under changed conditions (such as reassigning the employee to another department), it is permissible for the employer to terminate the contract for reasonable reasons outside of conduct. The employee is ultimately unable to fulfil a contractual obligation because of personal reasons.9
1 Hoffmann, Schulte in GewO (Trade Regulations) (BeckOK) 42nd Ed. 1.7.2018, Section 106, margin 19.
2 Federal Labour Court, case from 24.02.2011, 2 AZR 636/09, margin 17.
3 See above, margin 22.
4 See above, margin 39.
5 Labour Court Kassel, case from 17.03.2011, 9 Ca 379/10, margin 35.
6 Federal Labour Court, case from 24.02.2011, 2 AZR 636/09, margin 38.
7 Labour Court Hamburg, case from 22.10.2001, 21 Ca 187/01, margin 5.
8 Federal Labour Court, case from 24.02.2011, 2 AZR 636/09, margin 41.
9 See above, margin 44 onwards.