14. Nov 16

Dismissal following remarriage ends up before CJEU

Does the remarriage of a chief physician at a Catholic hospital justify his dismissal? This issue will have to be clarified by the Court of Justice of the European Union (CJEU) in the near future.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: An employee’s denomination can be significant from the perspective of employment law. In one pertinent case, the Catholic chief physician at a Catholic hospital was dismissed for remarrying. The case has already gone before the Bundesarbeitsgericht (BAG) and the Bundesverfassungsgericht (BVerfG), Germany’s federal labour and constitutional courts respectively, and will soon come before the Court of Justice of the European Union.

Following a ruling of the BAG from July 28, 2016 (Az.: 2 AZR 746/14), the CJEU is set to grapple with the issue of whether churches, pursuant to their desire for loyal and honest conduct, are allowed under EU law to differentiate between employees who are members of the church and those who either are not or belong to another church in the case of an employee in a managerial position.

The plaintiff in the case had been employed as the chief physician at a Catholic hospital from 2000. His employment contract stated that entering into a marriage that is void according to the Catholic Church’s understanding of faith and legal order constitutes an act of severe disloyalty and can justify dismissal. The contract even went so far as to exclude the possibility of the employment relationship continuing in the event of an executive employee such as a chief physician committing this transgression.

As it happens, the chief physician’s marriage fell apart. Following his divorce, he got married for the second time in 2008 in a civil ceremony. He subsequently received ordinary notice of dismissal. The chief physician contested his dismissal, pointing out that an evangelical Protestant chief physician’s remarriage had not given rise to employment-related consequences. While his action against unfair dismissal was successful before the courts of lower instance, the Bundesverfassungsgericht later overturned the BAG’s ruling and referred the matter back to the latter court.

The 2nd Chamber of the BAG has since decided to call on the CJEU to establish a general framework for equal treatment in employment and occupation. The central issue here is whether it is acceptable for a person’s denomination to be the decisive factor in assessing loyal conduct.

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