On the effectiveness of a dismissal based on an employee‘s refusal to work for religious reasons
 If an employee refuses to perform a task to which he has agreed contractually, this may justify his dismissal by his employer (Federal Labor Court decision of 24 February 2011, 2 AZR 636/09).
The plaintiff was employed by the defendant as a shop assistant in a large department store. In February 2008 he refused the defendant's instructions to work in the drinks section of the store. The plaintiff is a Muslim and claimed that his religious beliefs prevented him from involvement of any kind in the distribution of alcoholic drinks. As a result, the defendant dismissed him. The plaintiff then instituted proceedings for unfair dismissal. The court of second instance, the Schleswig-Holstein Regional Labor Court, upheld the validity of the dismissal.
The Federal Labor Court overturned the decision of the Schleswig-Holstein Regional Labor Court and referred the matter back to it for a new hearing and decision. The Senate stated in its reasoning that it was not possible to decide definitively on the basis of the facts ascertained by the Regional Labor Court whether the plaintiff's refusal to work in the drinks department justified his dismissal by the defendant. The Court held that an employee's refusal on religious grounds to perform a task, which he has contractually agreed to perform, may in principle be justified. The
plaintiff must, however, if he believes there are religious grounds preventing him from performing the work, inform the employer exactly what those religious grounds are and state exactly which activities they prevent him from performing.
However, it was a precondition for the validity of the dismissal that the defendant was not able to assign the plaintiff any other closely related activity that would have taken into account the restrictions imposed on him by his religion. In the present case, the plaintiff did not make clear enough submissions on which activities his religious beliefs prevented him from performing. Accordingly, it was not possible to reach a definitive decision on whether any other employment opportunities existed.
The Federal Labor Court's decision raises serious practical concerns. It is true that the legal arguments in relation to the significance of religious freedom as a legal interest to be protected under Article 4(1) of the Basic Law are perfectly understandable.
However, as far as the drafting of employment contracts and the exercise by an employer of his right to give instructions are concerned, this case law is not without its difficulties. Employers could try to avoid potential refusals to work on religious grounds by agreeing with an employee on such a narrow scope of duties that any refusal to work would necessarily lead to a (valid) dismissal because there were no alternative activities which the employee could be given. This would, however, result in a severe restriction on the employer's authority to give instructions during the employment relationship. This is neither in the interests of employers, nor of employees, who would then have to accept – irrespective of religiously motivated refusals to work – a significantly higher risk of being dismissed for operational reasons Whether or not the facts ascertained in this case ultimately justify the dismissal will depend on the Schleswig-Holstein Regional Labor Court's decision and the fresh appeal to the Federal Labor Court that will presumably follow.