IS AN EMPLOYEE ENTITLED TO PAID OR UNPAID LEAVE FOR THE PURPOSE OF HAJJ?
Summarized: An employee may take leave up to four weeks to embark upon the Hajj pilgrimage. The application for leave must, however, be submitted well in advance. If the number of days of leave the employee has left over is not sufficient, the employee could apply for unpaid leave, as long as it doesn’t oppose any operational interests of the employer.
Employees who have been part of a contractual relationship for six continuous months according to Section 4 of the Federal Leave Act are entitled to paid recreational leave each calendar year in accordance with Section 1 of the same Federal Leave Act. When the employee goes on leave is up to the employee themselves, so that they are as a rule entitled to leave for the purpose of performing Hajj. The employer can only oppose an employee’s wish for leave on grounds of urgent operational reasons, such as staff shortages or periods of intense workload or even leave requests of other employees which take priority from a social standpoint.1 It is argued in legal literature that so-called ‘urgent concerns’ of the employer are not enough to reject an employee’s leave request based on a religion reason.2 Required are, therefore, ‘outstanding operational reasons’. After all, the employee does enjoy special protection of their fundamental right to religious freedom from Article 4 of the German Constitution.3 According to this view, the employer must be facing an ‘existential hardship’ in order to be allowed to deny the employee leave.4
In case the employee’s remaining leave isn’t sufficient to take part in Hajj, they can assert their right to unpaid leave of absence within the framework of the principle of mutual consideration stemming from Section 242 of the German Civil Code in conjunction with the employment contract and in light of the fundamental right to freedom of religion according to Article 4 of the German Constitution.5
1 Section 7 (1) 1 of the Federal Leave Act.
2 Schneider in ArbRAktuell 2016, page 298.
3 See above.
4 See above.
5 Hoevels in Islam und Arbeitsrecht, 2003, page 200.