Can the church dismiss an employee after they leave the church? BAG submits fundamental question to the ECJ

BAG, decision of 1 February 2024 – 2 AZR 196/22 (A)

Initial case: Employee leaving the church leads to dismissal

The defendant organisation is a women's and professional association of the Catholic Church in Germany, which is dedicated to helping children, young people, women, and their families in special situations. One of its tasks is to provide counselling to pregnant women. The plaintiff has been employed by the defendant since 2006 as a pregnancy counsellor. She was on parental leave from June 2013 to 31 May 2019. The plaintiff left the Catholic Church in October 2013, which the defendant became aware of in December 2013. As a result, the defendant terminated the employment relationship after the end of her parental leave on 1 June 2019 without notice, alternatively, with effect from 31 December 2019. The employer argued that by leaving the church, the employee had seriously breached her loyalty obligations. The defendant had previously tried unsuccessfully to convince the plaintiff to rejoin the Catholic Church. At the time of the termination, the defendant employed four members of the Catholic church as well as two members of the protestant church in the pregnancy counselling service. The plaintiff subsequently filed an action for unfair dismissal.

Previous decisions in this case – There is no good cause for termination without notice

Initially, the Wiesbaden Labour Court (judgement of 10 June 2020 - 2 Ca 288/19) and the Hesse Higher Labour Court (LAG) (judgement of 1 March 2022 - 8 Sa 1092/20) had to deal with the question of whether the dismissal of the plaintiff was valid. In particular, the LAG pointed out that Section 626 (2) of the German Civil Code (BGB) already precludes the validity of a termination without notice. Accordingly, termination without notice for good cause can only take place within two weeks. The period commences at the time at which the party entitled to terminate becomes aware of the facts relevant to the dismissal. However, the defendant had already become aware of the employee’s departure in December 2013. Furthermore, the LAG found that there was no good cause within the meaning of Section 626 (1) BGB that would justify the extraordinary termination of the plaintiff's employment. Rather, the dismissal violated Section 7 (1) of the General Equal Treatment Act (AGG) by directly discriminatingon the basis of "religion" (Sections 1, 2 (1) No. 2, 3 AGG). This discrimination is not justified under Section 9 (2) AGG.

Discrimination based on religion? Referral of the BAG to the ECJ

The BAG, which has to decide on the women's association's appeal, suspended the proceedings and requested preliminary clarification from the ECJ in February 2024. The first referred question reads as follows:

“Is it compatible with EU law, in particular Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) in the light of Article 10 (1) and Article 21 (1) of the Charter of Fundamental Rights of the European Union (Charter),

• if a national regulation provides that a private organisation whose ethos is based on religious principles
• may require persons working for it not to leave a particular church during the employment relationship,
• or may make the continuation of the employment relationship dependent on a person working for it who has left a particular church during the employment relationship rejoining it,
• if it does not otherwise require the persons working for it to belong to that church (…)?”  

The specific unequal treatment therefore concerns employees who have never been members of the Catholic Church and who are therefore not threatened with dismissal as a result of leaving the church.

Breach of loyalty obligations by church employees – Case law to date

A decision in this case has been expected for some time. A comparable dismissal dispute between a midwife and a Caritas clinic was due to be decided at the end of 2023 after the BAG referred the matter to the ECJ. The church employer probably wanted to avoid a landmark judgment. The clinic recognised the claims of the dismissed midwife in full and stated that the employment relationship had not been terminated (BAG, recognition judgement of 14 December 2023 – 2 AZR 130/21). The BAG therefore did not clarify the issue.

In the case of a dismissed head physician, the issue was not leaving the church, but remarriage. In this context, it was examined whether religion is an essential, legitimate, and justified occupational requirement in view of the nature of the professional activities or the circumstances in which they are carried out. In this case, however, religion was not found to be a professional requirement. The BAG ruled that the dismissal was discriminatory and invalid (BAG, judgment of 20 February 2019 – 2 AZR 746/14).

What happens next?

After a church employer fully accepted the plaintiff’s claim in the previous proceedings, it appears that the defendant now wants to bring about a decision by the BAG in order to finally provide clarity and legal certainty in such cases. 

It therefore remains to be seen how the ECJ will respond to the referral.