European Court provides guidance outlining that the genuine occupational requirement relating to religious affiliation only arises when it is required for the job. It was not so here so it was unfair to dismiss when the claimant left the Catholic Church.

The respondent is an association within the German Catholic Church. The claimant was a former employee who was dismissed on the basis that she decided to leave the Catholic Church and, she alleges, due to her unwillingness to pay a special levy imposed by the church on persons who live with a high-earning spouse of a different religion.  This related to the Basic Regulation which had a duty of loyalty and that a breach of that could lead to dismissal. Examples were given such as promoting abortion or xenophobia or defection from the Catholic Church which would be regarded as a serious breach of that duty. The respondent found that it was a breach of loyalty from the claimant and dismissed her when she left the Catholic Church and did not take up the offer to rejoin when persuaded to do so.  The issue was whether it was an unfair dismissal on the grounds of religious discrimination.

The domestic court found that it was unfair dismissal which was appealed and that led to the preliminary reference being submitted to the European Court of Justice. The issue was whether there was a genuine, legitimate and justified occupational requirement based upon the person’s religion. It was notable that the respondent did not require employees to be a member of the Catholic Church or a church at all for that point. However, that had to be put against the fact that within Canon Law leaving the church is one of the most serious offences against the faith and unity of the church.

The Advocate General outlined that Article 4(1) and (2) of the Directive which relates to the genuine occupational requirement must be interpreted as meaning that the derogations contained in that article cannot be applied to a difference of treatment resulting from the dismissal of an employee by the religious organisation on account of that employee’s decision to leave the church, where the performance of the occupational activities does not require being a member of that church and the employee concerned does not openly act in a manner which is contrary to the ethos of the church.  Accordingly, it was not appropriate for the claimant to be dismissed. The case will go back to the domestic court for determination following the clarity given by the ECJ.

An interesting case relating to the genuine occupational requirement to have a particular religious belief and what happens where such a belief is not strictly required but leaving the religion is a serious breach of loyalty.  The ECJ has made it clear that the Directive relates to it being a genuine requirement of the job and that if the requirement was not part of the job, then the decision could not be made to dismiss when someone was to leave the church.  It may have been a serious breach of loyalty and against Canon Law but the claimant would have still been able to carry out her role as a counsellor. This is only likely to cover a small number of employers, but they should be mindful of the genuine occupational requirement element links to who can carry out the job and not the actions of one if they decide to leave an organisation even though it was not strictly required to begin with.

You can read the case in full here.