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Head scarfs at work?

Once again the federal labour court (Bundesarbeitsgericht, BAG) had to decide whether an employer may ban female employees from wearing head scarfs during working hours. The plaintiff, a woman of Islamic faith, had been employed by the defendant, a Protestant hospital, since 1996. She was a nurse. The employment contract referred to the working conditions of the Protestant Church and the dress code did not allow any head scarfs at work.

After parental leave from 2006 to 2009 and subsequent sickness, the plaintiff offered in April 2010 to return to work wearing a head scarf for religious reasons. The defendant declined this offer with reference to the dress code and did not pay any salary. The plaintiff felt that her freedom of faith had been impaired as well as her general right of personality. She sued for payment of the salary as in her opinion the defendant was not entitled to decline her offer to work.

The labour court decided in favour of the plaintiff, but the higher labour court (Landesarbeitsgericht, LAG) dismissed the claim. The federal labour court confirmed that a religious institution may generally ban employees from wearing head scarfs as that is considered as a symbol of the Islamic faith (docket number 5 AZR 611/12). The display of a dissenting religious symbol is not compatible with the obligation on an employee in a religious institution to behave in a neutral manner with regard to the religion as a special duty of loyalty.

The federal employment court has ruled on the ban of head scarfs before, but only with regard to private and public institutions. A public school was allowed to prohibit teachers to wear head scarfs as a sign of the Islamic faith as it has to remain neutral with regard to religious attitudes (docket number 2 AZR 499/08). An employee of a private department store on the other hand could not be prohibited from wearing a head scarf at work as a result of the fundamental right of freedom of faith (docket number 2 AZR 472/01). This is the first decision with regard to a religious institution and confirms again the special status of any church with regard to employment law. Part of the constitutionally guaranteed right of self-determination of a church is the determination of special duties of loyalty.