Dismissal of Catholic doctor due to his remarriage after divorce may be unlawful discrimination on the grounds of religion


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The European Court of Justice (EJC) has held that the dismissal of a Catholic doctor from a managerial position in a Catholic hospital due to his remarriage after divorce may constitute unlawful discrimination on the grounds of religion in IR v JQ.

JQ was a Catholic and worked as Head of Internal Medicine in a hospital managed by IR, a company that was subject to the supervision of the Archbishop of Cologne. The German constitution grants to churches and the institutions affiliated to them a right of self-determination which allows them to manage their own affairs within certain limits. JQ was dismissed for remarrying after divorce. He argued that his dismissal was contrary to the principle of equal treatment because the remarriage of a head of department of the Protestant faith, or of no faith, would not have had any consequences for the employment relationship between that person and IR. IR argued that the dismissal of JQ was justified because by remarrying he had breached the duty (contained in his contract) to be loyal to the ethos of the Catholic Church. The German Federal Labour Court asked the ECJ for its interpretation of Article 4(2) of the Framework Directive.

The ECJ held that where an employer treats employees differently by requiring those who hold its faith to act in line with it, this will only be consistent with EU law if, in a particular work context, there is a genuine, legitimate and justified occupational requirement for that treatment (this is set out in Article 4(2) of the Equal Treatment Directive). It noted that similar posts to the one held by JQ were entrusted to employees who were not of the Catholic faith and who were therefore not subject to the same requirement to act in good faith and with loyalty to IR's ethos. The Court held that if an employer requires employees performing non-religious managerial duties to act in line with its ethos, then such employees must have legal remedies under EU law to test the justification for action against them. The matter was referred back to the German Court to interpret national law in a manner consistent with the Directive.

Take note: JQ v OR makes it clear that, under EU law, religious bodies cannot determine for themselves the degree of exemption from anti-discrimination rules necessary to protect their ethos. The more distance a role is from religious functions the less likely it is that a requirement to act in line with the tenets of a particular religious belief will be justifiable.

This article is taken from HR Law - October 2018.

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