Can a Catholic doctor’s dismissal for remarrying constitute unlawful discrimination under European law?
Yes, held the European Court of Justice (ECJ) in the recent case of IR v JQ [2018] EUECJC-68/17.
IR v JQ [2018] EUECJC-68/17
Background
Discrimination on the grounds of religion or belief is generally prohibited. However, the Equality Act 2010 (EqA) sets out certain circumstances where a UK employer may have a defence to an act which would otherwise be regarded as discrimination.
One of the defences commonly relied upon is the “occupational requirement” exception. The following occupational requirements can be relied on in respect of religion or belief:
- General occupational requirement – where, having regard to the nature or context of the work, an employer can require that people must be of a particular religion or belief to do the job;
- Religious organisation – where employment is for the purposes of an organised religion, an employer can place requirements on people in relation to sex, sexual orientation, marriage or gender reassignment in order to comply with the doctrines of that religion; and
- Religious ethos – where an employer has an ethos based on religion, it can, having regard to the nature or context of the work, require people to be of a particular religion or belief to do the job.
Facts of the Case
JQ worked as Head of Internal Medicine in a private German hospital managed by the Catholic Church. During the course of JQ’s employment, the hospital discovered that he had re-married in a civil ceremony without his first marriage being annulled. The hospital dismissed JQ on the grounds that JQ had breached his duty to act in good faith and with loyalty to the hospital’s religious ethos.
The hospital stated that German law entitled them to impose requirements on its employees to act in good faith and with loyalty to the ethos of the Catholic Church and that JQ had breached his employment contract. JQ’s employment contract referred to the Catholic Church’s regulations on employment relationships, which state that entry by a Catholic employee performing management duties into a marriage that is invalid under the law of the Catholic Church can justify dismissal. The hospital also highlighted the fact that the Catholic Church regards religious marriage as sacred and indissoluble.
JQ argued that his dismissal infringed the principal of equal treatment, as the remarriage of a head of department of the Protestant faith or no faith would not have had any consequences on the employment relationship. There were in fact employees in similar posts to JQ at the hospital who were not of the Catholic faith.
Decision
The national German Court asked the ECJ for their opinion as to whether the hospital’s actions constituted unlawful discrimination under European law.
The ECJ held that when making its decision on the matter, the national German Court must be satisfied that the religion or belief constitutes an occupational requirement that is genuine, legitimate and justified in the light of the ethos in question, having regard to the nature or context of the work being carried out. The ECJ commented that JQ’s adherence to the law of the Catholic Church with regard to marriage was not necessary for the promotion of the hospital’s ethos, and not a genuine occupational requirement given the importance of the medical activities carried out by JQ.
The ECJ further held that a Church or other organisation with a particular ethos, and which manages a hospital, cannot decide to subject employees to a requirement to act in good faith and with loyalty to that ethos that differs according to the faith or lack of faith of such employees.
Comment
In the UK, the religious ethos occupational requirement exception is applied narrowly. Further, whether or not a religious ethos occupational requirement exists would be a matter for an employment tribunal to determine, and not a decision to be taken by the religious organisation itself.
However, employers should be mindful of European law, particularly as the ECJ held that where it is not possible to interpret a country’s national law in a manner consistent with European discrimination law, the national law must be dis-applied.
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