Dismissing a Catholic employee for remarriage can constitute unlawful discrimination. ECJ, judgment of 11.09.2018, Ref.: C-68/17

The Catholic plaintiff worked as a chief physician in a Catholic hospital. After divorcing his first wife, to whom the plaintiff was married both in church and in a civil ceremony, the plaintiff married his second wife in a civil ceremony. When the defendant became aware of the remarriage, it terminated the employment relationship with the plaintiff. In the opinion of the defendant, the plaintiff had seriously breached the loyalty obligations arising from his employment contract by entering into a marriage that was invalid under church law.

The head physician took legal action against this dismissal and claimed that his remarriage did not constitute grounds for dismissal and, among other things, violated the principle of equal treatment, as according to the Basic Regulations for Church Services (GrO), the remarriage of a Protestant or non-denominational senior employee has no consequences for their employment relationship. The plaintiff was initially upheld before the labor court, the regional labor court and also before the Federal Labor Court. The courts of first instance took the view that remarriage could in principle justify a dismissal, but that a weighing of interests, taking into account the employee's personal rights, would render the dismissal invalid. The defendant did not agree with this decision and lodged a constitutional complaint against the BAG's ruling. The Federal Constitutional Court overturned the judgment of the BAG, referring to the limited judicial review of loyalty obligations in church employment relationships by state courts, and referred the legal dispute back to the BAG.

The BAG then asked the ECJ to interpret the Church Equal Treatment Directive to establish a general framework for the implementation of equal treatment in employment and occupation. According to this directive, it is generally prohibited to discriminate against an employee on the basis of their religion or belief. At the same time, the directive allows churches and other organizations whose ethos is based on religious principles or beliefs to require their employees to behave loyally and sincerely in accordance with this ethos under certain conditions.

The ECJ has now ruled predominantly in favor of the head physician: The dismissal of a Catholic head physician by a Catholic hospital due to remarriage may constitute prohibited discrimination. The decisive factor here is whether religion constitutes a genuine, legitimate and justified occupational requirement in view of the nature of the activity in question. This must be examined by the national courts on a case-by-case basis. The ECJ indicated that it considered the BAG's decision in the case of the head physician to be correct.

Conclusion: The BAG's upcoming decision is unlikely to come as a surprise. It remains to be seen how the German courts will generally implement the requirements of the ECJ. In any case, the GrO will no longer be able to be applied as before in the case of labor law measures and will have to accept scrutiny by the labor courts. It remains to be seen whether the Federal Constitutional Court will oppose this and see the constitutionally guaranteed right of self-determination of the churches violated. Should this happen, the ECJ's ruling would have significance far beyond employment law.

Date: 12. Sep 2018