Germany Update: Does Leaving the Church Justify Dismissal by a Church Employer?

In its order of reference of 01.02.2024 (case no. 196/22 (A)), the Federal Labour Court (BAG) has referred to the European Court of Justice (ECJ) – not for the first time – the question of whether unequal treatment of employees when leaving the church is still covered by European law.

Background:

The plaintiff worked for several years in pregnancy counseling at a Caritas association before she went on parental leave. During this time, she resigned from the Catholic Church, citing the levying of a special church fee by the diocese of Limburg as the reason for this. Nothing has changed in their church values despite the resignation. The counselling activity she had previously carried out was also not subject to any particular religion and was non-denominational. The Basic Order of the Church Service – an integral part of the employment contract – only provides that non-Catholic and non-Christian employees are active in the interests of the Church, without there being an obligation to join the Catholic Church. However, according to the Basic Order, a resignation of Catholic employees from the Church represents a massive violation of their duties of loyalty and justifies dismissal for church-specific reasons.

The employer tried to persuade the plaintiff to re-enter before returning from parental leave for continued employment. When this was unsuccessful, he terminated the employment relationship extraordinarily, alternatively ordinarily. At the time of the dismissal, four employees belonged to the Catholic Church and two employees to the Protestant Church. The action against the dismissal was successful in the first and second instances. As a result of the defendant’s appeal to the Federal Labour Court, the Federal Labour Court issued a referral order of 01.02.2024 (case no. 2 AZR 196/22 (A)) to the ECJ for a review of compatibility with European law.

Legal problems:

While the plaintiff considers the dismissal to be invalid for lack of a suitable reason for dismissal as well as because of a violation of the prohibition of discrimination on religious grounds, the defendant considers the dismissal due to the resignation from the church to be a violation of loyalty and the associated turning away from the Catholic Church as justified. While the parties have also argued in the previous proceedings as to whether the resignation as a purely private decision can at all constitute an outwardly directed turning away from the church, the Federal Labour Court’s referral order is primarily concerned with a possible violation of the Equal Treatment Directive. In addition to the question of whether the church can demand that its employees do not leave or re-enter the church, the half-sentence “… if they […] by the way, does not require [its employees] to belong to this church…”, that the Federal Labour Court recognises unequal treatment compared to non-Catholic employees and has doubts about its compatibility with EU law. This is also made clear by the fact that the Federal Labour Court asks for the presentation of possible further justifications in the event of compatibility.

Conclusion:

Of course, the ECJ’s decision cannot be predicted. Nevertheless, it seems doubtful that the judges in Luxembourg allow such unequal treatment – especially because religious affiliation is not a significant occupational requirement for the specific job. Nevertheless, the decision remains to be seen – but it is desirable that this time a decision of the ECJ is actually issued in order to create legal certainty for this problem.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

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