2014/12 Leaving the church serious cause for termination (GE)

 

Summary  

An employee was dismissed by a religious organisation for leaving the Roman Catholic Church. The courts upheld the dismissal in three instances.

Facts

 The plaintiff, born in 1952, had been employed by Caritas since 1992 as a social worker. Caritas is a Roman Catholic relief, development and social service organization. During the last years, the plaintiff worked as a social educationalist in a project offering children educational support. No part of his work was of a religious or clerical nature. 

In 2011, he decided to leave the Roman Catholic Church. He gave two reasons. One was the recent discovery of cases of sexual abuse of children by Catholic priests. The other was the fact that he held critical views about the Good Friday liturgy. He informed his employer, the defendant, about this. The defendant determined that the plaintiff was no longer loyal to the church, nor to Caritas, whose purpose is defined as charitable altruism. Consequently, he could no longer perform the "service for humanity", which Caritas sees as its mission for the Catholic Church. 

It was common ground that until this time, the plaintiff had an irreproachable working record. As he had been employed since 1992, the provisions applying to his employment contract provided that the only way to terminate the contract was by way of extraordinary dismissal (außerordentliche Kündigung) without notice for serious cause (wichtigen Grund). The defendant terminated the contract in this manner, but nevertheless gave six months’ notice.  

The plaintiff brought a claim against the defendant for wrongful termination. He argued that the position he held was one involving neither management nor religious, clerical or pastoral functions. He added that the length of his employment (19 years) and his age (60) would also have to be taken into consideration. The defendant argued that the employee’s decision to leave the church presented an offence to the Christian faith and to the morals to which Caritas was bound. In its view, this offence constituted serious cause that could be dealt with by way of extraordinary dismissal.

Judgment

Both the BAG and the previous instance courts decided in favour of the defendant. It held that the defendant was allowed to dismiss the plaintiff without notice because his breach of loyalty towards the Catholic Church presented sufficient grounds for such a termination. Article 140 of the Constitution, which was taken from the Weimar Constitution (Article 137 WRV), guarantees each religious community the right to arrange and manage their affairs independently, albeit within the limits of national law. Therefore, the defendant had the right to determine what constitutes a serious cause that could be dealt with by way of extraordinary dismissal. 

In the case at hand, the definition of serious cause was not in conflict with regular German law, in this instance, section 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz) and Section 626 of the Civil Code (which defines the grounds for extraordinary termination). To determine this, the court took into account, on the one hand, the provision granting rights of self-determination to religious communities and, on the other, the plaintiff’s right to religious and professional freedom deriving from the Constitution. Since the plaintiff was well aware of the fact that the defendant considered leaving the church a breach of loyalty and hence a serious cause for termination, the BAG held that the definition of serious cause did not violate regular German law.  

The BAG also found that the termination was not void by reason of a violation of sections 1^[1] and 7^[2] of the German Equal Treatment Act (the Allgemeines Gleichbehandlungsgesetz, ‘AGG’,  the German transposition of Directive 2000/78/EC). These provisionsprohibit discrimination on the grounds of, inter alia, religion. The BAG stated that there had been unequal treatment between the employee, who had left the church, and other employees who had remained within the Catholic Church. Therefore, the plaintiff had been subjected to direct discrimination. The employee’s contract would not have been terminated had he continued to be a member of the Catholic Church. However, the employer’s action was justified pursuant to section 9^[3] of the AGG. According to that provision, a difference in treatment of employees of a religious community or an affiliated organisation on the grounds of religion does not constitute discrimination where such grounds constitute a justified occupational requirement by the nature of the particular activity. In essence, section 9 allows religious communities or comparable organisations to require individuals working for them to act in good faith and with loyalty to the organisation’s religious principles or ethos.  

The German transposition of Directive 2000/78 (the AGG) does not differ from the Directive, which in Article 4(2) allows Member States to:  

“maintain national legislation […] pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.”  

Article 140 of the Constitution could represent such national legislation, although the BAG did not deem it necessary to decide this question. In the present case, the requirement to be catholic was considered to be an occupational requirement and the BAG held that the plaintiff did not meet that requirement any more.  

In the case at hand, there was no need to decide whether section 9 AGG also requires that the nature of the services rendered by the employee specifically implies a need to show loyalty towards the Church. This was because, for example, a church organist would need to be a member of the Catholic Church, even though he may not speak to anyone about his religious beliefs. Therefore, the court dismissed the plaintiff’s argument that his daily work lacked religious content. The BAG explained that, even though no clerical content was being taught, a belief in altruism and an ethos of service towards mankind were nonetheless conveyed by the employer and employees in all their educational projects. On this basis, even the strictest opinion in German legal literature would find that the breach of loyalty in the case at hand constituted serious cause. 

Commentary

 This decision - though legally correct from our point of view – has been the subject of a great deal of criticism, especially because of the long employment relationship and the employee’s age (60 at the time of the termination). Many argued that leaving the church could not be grounds for termination for cause, as that would put it in the same category as fraudulent or criminal acts towards the employer or intentional breaches of duty. 

These arguments, however, cannot succeed because in this case, the employee was not actually facing a termination for cause but rather an ordinary termination - given that there was no other way to terminate the contract than by way of termination for cause. The employment relationship did not end immediately but six months later, which is the same as the notice period for an ordinary termination. 

It is clear then, that social workers and teachers working for clerical organisations are required to respect the beliefs and the ethos of the organisation they work for. Although the Catholic Church has been much criticised in recent times for many reasons, in the end it is not very different from other organisations that are founded on a particular view. Political parties and trade unions, for example also expect employees to share their views and do not employ non-members. 

This case illustrates that the right of religious groups to self-management and self-determination that has always been part of the German Constitution is to be respected as much as the freedom the Constitution reserves for individuals.

Comments from other jurisdictions

Austria (Martin Risak): Under Austrian law there are two possible arguments that can be made that dismissal of a worker for leaving the church, as described in this case report, is unlawful. One is that the Equal Treatment Act (Gleichbehandlungsgesetz) prohibits discrimination based on religion or belief. The Equal Treatment Act transposes Directive 2000/78/EC and makes use of exemption from the Directive for ‘occupational requirements’. As in Germany, the Austrian legislator transposed the text of the Directive more or less verbatim. There has not yet been any case-law, but I am not sure that the Austrian courts would have decided the same way as the German ones, given that Caritas assists people irrespective of their social, national and religious affiliations and that a social worker’s job lacks explicit religious content. It is therefore possible that affiliation to the Catholic Church might not be considered by the Austrian courts as a genuine, legitimate and justified occupational requirement.  

If the dismissal was not discriminatory the next question under Austrian law would be whether it could be deemed socially unjust. There is an exception for undertakings that serve the confessional aims of a church, but it only applies if protection against dismissals would conflict with the special character of the undertaking. Even if the protection did apply the employer may still justify a dismissal on the grounds that dismissal would not be an unreasonable reaction to a worker leaving the church. However, as no relevant jurisprudence exists I am not sure how the Austrian courts might rule if a case such as the German one described above were brought before them. 

Denmark (Mariann Norrbom): Section 6 of the Danish Anti-Discrimination Act specifies that the general prohibition against discrimination on grounds of political opinion, religion or belief does not apply to employers whose express purpose is to promote a particular political or religious viewpoint or a particular religious persuasion and where the employee’s political opinion, religion or belief may be deemed to be of importance to the employer.  

It can be seen from the preparatory notes to the Danish Anti-Discrimination Act, however, that in order for this exception from the general prohibition to be available, it is a condition that the employee must be required to express his or her beliefs in the performance of his or her duties, e.g. a teacher who is required to express his or her beliefs in his or her teaching activities.  

There is no case law from the Danish courts on this issue, but the Danish Board of Equal Treatment has decided in favour of the employer in two cases concerning applicants for a vacant position with a religious institution. In one of the cases, the vacancy was a secretarial position and in the other it was a position as an organisational consultant. In both cases, the religious institutions were justified in expressly requiring applicants to be a member of the Danish National Church (in the case involving the secretary) or a Christian congregation (in the case involving the organisational consultant). Thus, the scope of the condition is not quite clear and it is therefore not unlikely that a Danish court would reach the same conclusion in a case similar to the German one reported above.  

Slovakia (Beáta Kartíková): In the case reported above, the right for individuals to perform work without reference to their religion and the prohibition against discrimination on the grounds of religion or belief blur with the right of self-management of churches and religious organizations - and it is not entirely clear which right would prevail in Slovakia.  

In Slovakia an employer may terminate employment with notice if the employee has not abided by the requirements for carrying out the agreed work, as set out in the internal rules of the employer, and there is no fault on the part of the employer. The law does not specify what kind of requirements may be made, but they will be acceptable if justified by the nature of the work. 

It is debatable whether the requirements of a particular religion as set out in the internal regulations of a church or religious community for employees performing activities other than clerical or religious ones, would be considered justified. This is because the Slovak Constitution guarantees freedom of religion and the right of the individual to change his or her religion and indeed, to have no religion. The Slovak Labour Code states that individuals have the right to protection against malicious dismissal from employment in accordance with the principle of equal treatment and that that right is inalienable. The individual cannot be discriminated against on grounds of religion or belief. In employment relationships, discrimination against employees on grounds of religion or belief is expressly prohibited. The law provides that a person’s religion should not be a reason to restrict his or her constitutionally guaranteed rights and freedoms, particularly the right to practice a profession. One can assume that this applies equally to individuals without religion. 

Registered churches and religious communities have also the constitutional right to administer their own affairs. Moreover, the law guarantees churches and religious communities the right to issue their own internal rules, unless these are contrary to law. Any work requirement included in the internal rules should be justified by the nature of the work. The Slovak Labour Code provides that the employment relationships of employees of churches and religious societies that carry out ecclesiastical activities are governed by the Slovak Labour Code, unless their internal regulations provide otherwise. If an employee is to perform ecclesiastical activities, this should be made clear in the job description . 

We are of the view that churches and religious communities can, as employers, make it a special work requirement in their internal rules that employees practice the religion if those employees carry out ecclesiastical activities or other similar activities. However, this would not be the case if the employees do not perform duties of a religious or clerical nature (e.g. administrative staff and managers). 

It is common practice in Slovak registered churches and religious communities for jobs not involving ecclesiastical functions (e.g. managers) to be done by employees who are not members of the church or are members of another church. 

For those reasons, in our view, the Slovak courts would probably have decided in the case at hand in favour of the employee. 

United Kingdom (Bethan Carney): As in Germany, the UK Equality Act 2010 has a specific exception from the law on religious discrimination for organisations with an ‘ethos’ based on religious belief (paragraph 3, schedule 9). This provision states that:

“a person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) [prohibition on discrimination in employment, contract work, etc.] by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work -

(a)           it is an occupational requirement, 
(b)           the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c)           the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it)”.  

This is in addition to the ‘genuine occupational requirement’ defence to religious discrimination that applies to all employers.  

Although Caritas would be regarded as having an ‘ethos’ based on religion or belief, it is still unlikely that the courts in the UK would have found that this exception applies to these circumstances; in other words, it is likely that a UK court would have found that this dismissal constituted religious discrimination. This is because the UK courts have construed this provision very narrowly.  

In the employment tribunal case of Sheridan v Prospects For People With Learning Disabilities ET Case No.2901366/06 and Hender v Prospects For People With Learning Disabilities ET Case No.2902090/06 the tribunal held in a similar case to this one that a Christian charity providing support services for people with learning difficulties could not operate a policy of only employing Christians. The tribunal held that the services being provided were not religious in nature and the majority of people being supported were not Christians. Relevant to the issue of proportionality, the tribunal found that some functions of the support workers’ role had a Christian element but that the employer should have considered whether those functions could have been carried out by another member of staff or whether a lesser requirement than being a practicing Christian would have been sufficient for the role – such as being sympathetic to the ethos.  

In another similar case (Glasgow City Council v McNab [2007] I.R.L.R. 476), the Employment Appeal Tribunal held that it was not a genuine occupational requirement for a pastoral care position at a Roman Catholic school to be Roman Catholic.  

It seems probable, then, that in the United Kingdom, the courts would have found the claimant’s argument that the daily work lacked religious content more persuasive than the German courts did in this case.   

Subject: religious discrimination

Parties: unknown - v - Caritas

Court: Bundesarbeitsgericht (Federal Labour Court)

Date: 25 April 2013

Case number: 2 AZR 579/12

Hardcopy publication: NZA 2013, 1131

Internet-publication: www.bundesarbeitsgericht  ® Entscheidungen ® enter case number at “Aktenzeichen”