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Bundesarbeitsgericht (BAG) [Federal Labour Court]
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Key facts of the case:A saleswoman (a German citizen with Turkish background) of a department store in the small town of Schlüchtern (Hesse) was dismissed because she rejected her employer's demand to take off her Muslim headscarf, which she had insisted to wear since she had returned from maternity leave. After she continued to ignore her employer's instruction, she was dismissed with due notice. The woman's appeal against the dismission was not successful in preceding lawsuits in lower instances, but the Bundesarbeitsgericht (BAG/Federal Labour Court) ruled that the dismissal was against the law.Main reasoning/argumentation: The plaintiff argued that the dismissal constituted a disproportionate violation of the constitutional freedom of religion (Art. 4 (1), (2) GG). The defendant insisted on his right to take measures to avoid economic disadvantages for the store, which he anticipated if the saleswoman had continued to wear her headscarf at work. Both the employee's freedom of religion and the employer's freedom of action as an entrepreneur are protected by the law. The defendant's concerns regarding economic disadvantages, however, do not outweigh the protected interests of the claimant. When laying down a dress code the defendant must consider the claimant's constitutional right to freedom of religion. The dismissal is therefore void .Key issues (concepts, interpretations) clarified by the case: The case contributed to clarifying the need of balancing the employee's freedom of religion against the employer's economic rights and interests. The high importance of the right to freedom of religion as laid down in the Constitution (Art. 4 (1) GG) and in the European Convention for Protection of Human Rights and Fundamental Freedoms (Art. 14 EMRK) was emphasised. Furthermore, the ruling clarified that the employer's sole assumption (without providing empirical proof) of economic disadvantages due to an employee's Muslim headscarf did not constitute sufficiently strong grounds for a dismissal. Results and most important consequences, implications of the case: As the BAG ruled that the dismissal was against the law and thus void, the woman continued to work - with her headscarf - in the department store, though in another position without direct contact with customers. The defendant's appeal at the Federal Constitutional Court was not accepted. The case represents the first (and until now only) lawsuit at the Bundesarbeitsgericht which dealt with the issue of a dismissal due to the wearing of a Muslim headscarf. The ruling was published in numerous national and international juridical periodicals (e.g. Neue Juristische Wochenzeitschrift , Industrial Law Journal ). Furthermore, the legal finding was referred to in many juridical articles, often in the context of discrimination, the freedom of religion, and the freedom of action as an entrepreneur. The case was also discussed in some articles with regard to the Directives 2000/43 and/or 2000/78.
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