Court odyssey over the dismissal of a Catholic head physician after remarriage has come to an end - or has it? BAG, judgment of 20.02.2019 - 2 AZR 746/14

The facts in brief: 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. In a landmark ruling, the Federal Labor Court in Erfurt has significantly limited the influence of churches on labor law. The judges ruled on Wednesday, 20.02.2019 that a Catholic hospital may not dismiss a head physician simply because he had remarried after a divorce.

This decision by the BAG is based on a legal dispute that lasted for years. The case had already been dealt with by all conceivable instances both nationally and throughout Europe: After the doctor had initially successfully defended himself against his dismissal before the Düsseldorf Labor Court (ruling of 30.7.2009, ref.: 6 Ca 2377/09), the Düsseldorf Regional Labor Court (ruling of 1.7.2010, ref.: 5 Sa 996/10) and the Federal Labor Court in Erfurt (ruling of 8.9.2011, ref.: 2 AZR 543/10), the church appealed to the Federal Constitutional Court and was successful (ruling of 22.10.2014, 2 BvR 661/12). The Federal Constitutional Court considered the churches' right to self-determination to have been violated and overturned the BAG's ruling. The BAG was to decide again in accordance with the requirements of the Constitutional Court, while respecting the churches' right to self-determination. However, the highest labor court judges were not satisfied with the guidelines from Karlsruhe and asked the ECJ to clarify whether such an approach would not violate the prohibition of discrimination under EU law and run counter to the corresponding EU anti-discrimination directives. In their decision, the Luxembourg judges at the ECJ made it clear that ecclesiastical requirements for loyal conduct in the sense of the aforementioned ethos only justify unequal treatment between employees if, in the specific case, they constitute "an occupational requirement which is essential, lawful and justified in the light of the ethos of the church or organization in question and complies with the principle of proportionality". Unsurprisingly, the BAG has now endorsed this view in its decision and ruled in favor of the plaintiff. The dismissal is invalid.

Does this mean that the legal dispute is finally over? Only if the church does not appeal the BAG's new decision to the Federal Constitutional Court again. Should the BVerfG actually have to deal with the matter again, the outcome is open. The constitutional judges will then have to decide whether they will give precedence to the special role of the church as laid down in the constitution over Union law. Theoretically, this would be conceivable. However, such a decision by the BVerfG would have consequences that go far beyond the current case: To date, Union law has taken precedence in Germany, with the ECJ applying Union law with priority "over any national norm". The Constitutional Court has followed this path so far, as European law guarantees a level of protection of fundamental rights comparable to that of Germany. If the BVerfG now decides otherwise, it would deny the Union comparable protection of fundamental rights.

Consequences for church employment law: The decision represents a significant encroachment on the far-reaching autonomy of the church in personnel matters. The ECJ's discrimination law requirements, which the BAG has now endorsed, are far-reaching. In future, it will probably no longer be possible to reconcile misconduct under employment law in accordance with the church's constitution (such as adultery or registered civil partnerships) with the requirements of discrimination law. In addition, the churches will have to put up with state courts deciding whether the church requirements constitute an "essential, lawful and justified occupational requirement" for a particular job.

Date: 21. Feb 2019