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Religion or belief: Catholic doctor's dismissal for remarriage may be unlawful discrimination

20 September 2018
In the recent case of IR v JQ the Court of Justice of the European Union (CJEU) held that the dismissal of a Catholic doctor from the position of Head of Internal Medicine in Germany on the basis that he remarried after divorce could constitute unlawful discrimination.

Background
JQ is a Roman Catholic who trained as a doctor and began working in 2000 as Head of the Internal Medicine Department of IR, a hospital, under the supervision of the Archbishop of Cologne.  JQ's contract of employment was entered into in accordance with employment regulations which govern the service of the Church, known as GRO 1993 (the Basic Regulations).  

 JQ was married in accordance with the Roman Catholic rite.  He separated from his first wife in 2005 and their divorce was subsequently granted in March 2008.  In August 2008, JQ married his new partner in a civil ceremony without his first marriage having been annulled. 

IR was informed of JQ's second marriage and dismissed JQ by letter dated 30 March 2009 with effect from 30 September 2009.  IR considered the second marriage to be invalid under canon law (because his first marriage had ended by divorce rather than annulment) and believed this to be a breach of JQ's "duty of good faith and loyalty" to IR's ethos.  The Basic Regulations stipulate that employees of Catholic faith performing management duties will be committing a serious breach of the duty of loyalty, justifying dismissal, if they enter into a marriage which is invalid under canon law.  The ethos of the Catholic Church considers religious marriage to be sacred and indissoluble by divorce. 

JQ argued that he was being discriminated against on the basis that heads of department of Protestant faith or no faith at all would not have been dismissed.  The German Federal Labour Court sought clarification from the CJEU on the correct interpretation of the EU Equal Treatment Directive.

CJEU
The CJEU held that employees of organisations with an ethos based on religion or belief cannot subject management employees to a requirement to act in good faith and loyalty to that ethos without considering whether there is an occupational requirement.  The national court must be satisfied that, bearing in mind the nature of the occupational activities concerned, the religion or belief is a genuine, legitimate and justified occupational requirement in light of that ethos.  The CJEU referred the case back to the German national court to consider this point.  Observations made by the CJEU would suggest that it did not consider the test to be satisfied, namely:

  • Adherence to the notion of marriage did not appear to be necessary for the promotion of IR's ethos due to the nature of JQ's important medical occupational activities.  
  •  Similar posts were occupied by employees who were not of the Catholic faith.

The CJEU held that if it were impossible to interpret national law in accordance with the Directive, national law should be disapplied.  

Comment
Under the Equality Act 2010 UK employers with a religious ethos can seek to rely on the occupational requirement exception where:

  • Being of a particular religion or belief is an occupational requirement.
  • The application of the requirement is a proportionate means of achieving a legitimate aim.
  • The claimant does not meet the requirement (or the employer has reasonable grounds for not being satisfied that the claimant meets it).

Generally the exception has been interpreted narrowly and is limited to ministers and specific lay posts designed to promote the particular religion.  This case serves as a useful reminder to employers with a religious ethos that they must avoid applying a blanket requirement on all posts and must give serious consideration to the post in question.   Ultimately the question is one for the Employment Tribunal and employers will need to be able to evidence the necessity of the occupational requirement.  

Further Reading

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