Can employees be fired for getting divorced?

EU Law Analysis: Religious discrimination at work: Can employees be fired for getting divorced?

Religious discrimination at work: Can employees be fired for getting divorced?

Ronan McCrea, Professor of
Constitutional and European Law at University College London
The Framework
Directive on Discrimination in Employment came into force in 2003 but it took
14 years for the Court of Justice to issue its first major decision on its
religion-related provisions. However, we have now had four major decisions in
the last year and a half so the precise impact of the Directive’s
religion-related provisions is now becoming clear.
We now know that
a consistently-applied neutrality requirement that prevents employees wearing
symbols of religion or belief at work will be considered to be indirectly, not
directly discriminatory (the Achbita
case), that the court takes a narrow view of what counts as a genuine and
determining occupational requirement justifying direct discrimination on
religious grounds (Bougnaoui and
cases) and that the ability of religious employers to restrict roles to
co-religionists in order to protect their ethos was subject to a
proportionality test (the Egenberger  case.) (On Achbita
and Bougnaoui, see discussion here;
on Egenberger, see previous
discussion on this blog here)
The latest
judgment, in the case of IR
v JQ
addressed the matter of discrimination on grounds of religion
addressed by the Court in Egenberger, but
also covered the final major outstanding issue in relation to the
religion-related provisions of the Directive; the scope for those employers,
termed organisations ‘the ethos of which is based on religion or belief’ by the
Directive, to impose an obligation on their employees to behave with loyalty
towards the religious ethos of their employer.
However, it did
so in a slightly unusual way because in this case the employee in question
contested the fact that he had been placed under a greater duty of loyalty to
his employer’s ethos because he belonged to the same faith as his employers. In other words, he alleged that the
obligation of loyalty had been applied to him in a discriminatory way rather
than simply alleging that an excessive obligation had been imposed.
In this case the
employee, ‘JQ’, was the head of internal medicine in a hospital run by ‘IR’. IR
is a not-for-profit, Catholic organization that runs a number of organisations
including hospitals as part of what the Court of Justice called ‘an expression
of the life and nature of the Roman Catholic Church’. JQ is a Roman Catholic.
He was married in a Roman Catholic ceremony but divorced in early 2008. He
subsequently married a new partner in civil ceremony. When his employer became
aware of this he was fired from his post in March 2009.
His former
employer 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. JQ argued that his dismissal amounted to impermissible
discrimination on the basis that an employee who was not a Catholic would not
have been fired for entering into a second marriage.
EU law does
allow (but does not require) Member States maintain in force exemptions from
the duty not to discriminate. Article 4(2) of the Directive states: 
‘…. 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. This difference of
treatment shall be implemented taking account of Member States’ constitutional
provisions and principles, as well as the general principles of Community law,
and should not justify discrimination on another ground.’ 
The key issue in
the reference was whether the scope of the exemption from the duty not to
discriminate on grounds of religion or belief granted by German law to
religious organisations was compatible with Directive 2000/78. JQ’s Catholic
employers believed it necessary to place employees with managerial roles who shared
their Catholic faith under a greater obligation of loyalty than that placed on
non-Catholic employers. German law implementing Directive 2000/78 provides them
with significant scope to do so. It provides that:
‘The prohibition of a difference of treatment on grounds of religion
or belief shall not affect the right of the religious communities mentioned in
subparagraph 1, institutions affiliated to them, regardless of their legal
form, or associations that devote themselves to the communal nurture of a
religion or belief, to require their employees to act in good faith and with
loyalty in accordance with their self-perception.’(paragraph 9(2) of the
Allgemeine Gleichbehandlungsgesetz,)
This legislation
has been interpreted in the light of the German constitutional guarantee that
‘Religious societies shall regulate and administer their affairs
independently within the limits of the law that applies to all. They shall
confer their offices without the involvement of central government or local
authorities.’ (Grundgesetz Article 140).
The German
courts have consistently taken the approach that, in the light of this
constitutional guarantee of self-determination, religious institutions may
decide in accordance with their own faith-defined self-perception what is
necessary to fulfil their religious mission. This means that religious
employers may themselves definitively determine (subject only to plausibility
review by the courts) what constitutes acting ‘in good faith and with loyalty
to the ethos of the organisation’ within the meaning of Article 4(2) of the
The litigation
between JQ and IR spent several years moving between various levels of the
German court system (including a hearing before the Bundesverfassungsgericht
(Federal Constitutional Court) which did not refer the matter to the Court of
When it came
before the Bundesarbeitsgericht (Federal Labour Court) for the second time, the
court decided to make a reference to the Court of Justice under Article 267 in
order to ascertain whether the broad scope granted by German law to religious
employers to determine the scope of the duty of employees to be loyal to the
employers’ ethos was compatible the provisions of Article 4(2) of the
Directive. In particular, the national court wanted to know whether a religious
employer of a particular faith was entitled to apply a more stringent duty of
loyalty in respect of employees who are also members of the faith than is
applied to those who are of a different religion or of no religion.
The Court found
that German law provided excessive scope to religious employers in this regard.
This was not surprising as the Court of Justice had recently come to the a
similar conclusion in the Egenberger case
where a non-religious woman had been denied a job in a Protestant foundation.
In that case,
the Court of Justice ruled that a decision by a religious employer to
discriminate against an individual on grounds of their religion must satisfy a
proportionality test. This test included an obligation on the religious
employer to show that discriminating on grounds of religion was necessary
because of the importance of the job in question for ‘the manifestation of the
religious body’s ethos or its right of autonomy’.
In addition, the
Egenberger ruling stressed that the
right to effective judicial protection under Article 47 of the Charter of
Fundamental Rights meant that an employee claiming to be the victim of
discrimination must be able to contest whether such discrimination complied
with the tests of genuineness, necessity and justification before national
courts. Compliance with such tests could not be decided definitively by the
religious body itself, something which goes against the German approach of
allowing the self-perception of the religious institution to determine this
issue, subject only to plausibility review by the courts.
The Egenberger ruling therefore made it
clear that discriminatory decisions by employers must be subject to objective
justification, including compliance with a proportionality test (rather than
the self-perception of the religious body) as well as being contestable before
an independent court.
The key question
in JQ v IR was whether the principles
outlined in Egenberger by the Court
of Justice for dealing with cases of less favourable treatment on grounds of
religion in general, would also apply when the less favourable treatment
related to the imposition of an obligation of loyalty towards the ethos of the
employer. Unsurprisingly, the Court held that the same principles apply and
held that where an employee has been accorded less favourable treatment on
account of his religion (in this case by requiring greater loyalty to the
employer’s Catholic ethos from Catholic employees), such discrimination must
comply with a proportionality test and that compliance must be capable of being
assessed by an independent court, not the religious body itself. It noted that
the ability of employers to impose a duty ‘to act in good faith and with
loyalty to organisation’s ethos’, provided by Article 4(2) is subject to the
proviso that this duty can be imposed only ‘provided that [the Directive’s]
provisions are otherwise complied with’.
This means that the
lawfulness of a difference in treatment depends not on the self-perception of
the employer but:
‘on the objectively verifiable existence of a direct link between
the occupational requirement imposed by the employer and the activity
concerned. Such a link may arise either as a result of the nature of the
activity, for example where it involves taking part in the determination of the
ethos of the church or organisation in question or contributing to its
evangelising mission, or of the circumstances in which the activity is to be
carried out, for instance, where it is necessary to ensure that the church or
organisation is presented in a credible fashion to the outside world’
In addition the
difference in treatment must be shown to be genuine, legitimate and justified.
In this regard, the Court reiterated its ruling in Egenberger that:
‘”genuine” means that professing the religion or belief on which the
ethos of the church or organisation is founded must be necessary because of the
importance of the occupational activity in question for the promotion of that
ethos or the exercise by the church or organisation of its right of autonomy,
as recognised by Article 17 TFEU and Article 10 of the Charter’
‘”legitimate” shows that the EU legislature intended to ensure that
the requirement of professing the religion or belief on which the ethos of the
church or organisation is founded is not used to pursue an aim that has no
connection with that ethos or with the exercise by the church or organisation
of its right of autonomy’
‘”justified” implies not only that a national court can review
whether the criteria laid down in Article 4(2) of Directive 2000/78 are
being complied with, but also that the church or organisation imposing the
occupational requirement is obliged to show, in the light of the factual
circumstances of the individual case, that the alleged risk of undermining its
ethos or its right of autonomy is probable and substantial, so that the
imposition of such a requirement is necessary’.
This means that
the imposition of a greater duty of loyalty on Catholic employees only be
justified if ‘bearing in mind the nature of the occupational activities
concerned or the context in which they are carried out, the religion or belief
is a genuine, legitimate and justified occupational requirement in the light of
that ethos’.
While it
acknowledged that it was ultimately for the national court to reach a
conclusion on the facts, the Court of Justice gave a strong steer to the
national court noting that:
‘Adherence to that notion of marriage does not appear to be
necessary for the promotion of IR’s ethos, bearing in mind the occupational
activities carried out by JQ, namely the provision of medical advice and care
in a hospital setting and the management of the internal medicine department
which he headed. Therefore, it does not appear to be a genuine requirement of
that occupational activity within the meaning of the first subparagraph of
Article 4(2) of Directive 2000/78’
‘that positions of medical responsibility entailing managerial
duties, similar to that occupied by JQ, were entrusted to IR employees who were
not of the Catholic faith and, consequently, not subject to the same
requirement to act in good faith and with loyalty to IR’s ethos’
The Court also
confirmed the position it took in Egenberger
that the acknowledgement in Article
17 of the Lisbon Treaty
that the Union respects the status of churches and
religious associations under national law merely ‘expresses the neutrality of
the European Union towards the organisation by the Member States of their
relations with churches and religious associations and communities, that
article is not such as to exempt compliance with the criteria set out in
Article 4(2) of Directive 2000/78 from effective judicial review’.
Giving Effect to the Ruling: Indirect Effect and
Mangold Principles
The national
court also asked a number of questions in relation to its ability to give
effect to the Directive as interpreted by the Court of Justice. When making its
reference, the national court indicated that it suspected, correctly as it
turned out, that German law was inconsistent with the Directive. As this was a
dispute between two private parties, vertical direct effect of the Directive
per se was not available. In its ruling the Court of Justice took the
opportunity to remind the national court that the obligation of consistent
interpretation set out in Marleasing
and subsequent cases, included an obligation to adapt established national case-law.
the Court ruled that even if it was not possible to interpret German law
consistently with the directive, the national court could still give effect to
Directive 2000/78 in this case by disapplying the relevant national law. In
doing so it relied, as it had in Egenberger,
on the controversial line of cases arising from the Mangold
ruling in which the Court held that Directive 2000/78 merely codified a
pre-existing EU legal obligation to respect the general principle of equal
treatment which was not dependent on any implementing measures by the Member
State. This obligation applied notwithstanding the fact that JQ had been fired
before the Charter of Fundamental Rights came into force because the principle
of equal treatment was already binding as it was a general principle of law
arising from the common constitutional traditions of the Member State.
With four major
rulings in 18 months, the outlines of the approach of the Court of Justice to
the religion-related provisions of Directive 2000/78 are now reasonably clear,
giving us a clearer picture of the approach of the Union to religion’s role in
the legal system more generally.
First, it is
clear that the Court is committed to an approach that involves balancing of
clashing rights through the framework of proportionality. Under EU law there is
a sliding scale of religious autonomy with decreasing autonomy for religious
employers the more distant a role is from the core religious functions.
Furthermore, any discriminatory decisions must be capable of being challenged
in a meaningful way before the courts. Religious bodies cannot determine for
themselves the degree of exemption from anti-discrimination rules necessary to
protect their ethos.
This is in
contrast to the approach of the US Supreme Court which has adopted an approach
based on the idea of a ‘ministerial exemption’ under which the state has no
right to assess decisions of religious bodies in relation to roles that have a
religious element and indeed, to the approach of the European Court of Human
Rights which upheld, in cases such as Fernández-Martínez
v Spain
, an arrangement under which the automatic termination of the
contract of a religion teacher in a public school on foot of decision of a
local bishop to withdraw his endorsement of that teacher was subject to very
limited review. The commitment of the Court to proportionality as a means to
resolves clashes in this area means that it is likely that, when it is faced
with a case of the non-discriminatory application of an ethos-loyalty
obligation to an employee, it will insist that such an obligation be limited in
order to ensure that it does not have a disproportionate impact on other
fundamental rights such as the right to privacy of freedom of expression.
Second, the
Court is keen to limit its tolerance of policies that have potentially
discriminatory implications on grounds of religion, to instances where the
policy is consistently applied. Thus, in Achbita
and Bougnaoui it stressed that
neutrality policies would be considered indirectly rather than directly
discriminatory only if consistently applied to all statement of all forms of
religious, philosophical and political belief. Similarly, in JQ v IR it found fault in the fact that
the loyalty obligation would not have been applied to a non-Catholic in JQ’s
role. The Court has also made it clear that, as in Bougnaoui, in cases where a policy is shown to be directly
discriminatory it will not give a wide interpretation to the concept of a
‘genuine and determining occupational requirement’. This approach also involves
a commitment to treat religious and non-religious beliefs equally, something
that sets EU law apart from approaches in many other areas of the world.
Finally, the
Court regards the Treaty commitment in Article 17 to respect the status of
religious bodies in national law not as a mandate to exempt the legal
privileges of religious bodies from review for their compliance with EU legal
norms but as a statement of the EU’s neutrality in relation to the different ways
in which Member States organise their relations with churches and religious
Finally, for EU
law more generally, recent religion cases have underscored the Court’s
determination to persevere with its controversial approach of regarding
Directive 2000/78 as doing no more than giving specific expression to an
already self-executing general principle of non-discrimination in EU law.
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