Leaving the church can justify termination of the employment relationship

The resignation of an employee of a childcare centre run by a Catholic Caritas association from the Catholic Church can justify the termination of the employment relationship.

Pursuant to Article 140 of the Basic Law in conjunction with Article 137, paragraph 3, sentence 1 of the WRV, each religious society organises and administers its own affairs within the limits of the laws applicable to all. In addition to the established churches, this right also applies to the charitable institutions associated with them. It enables them, within the limits of the law applicable to all, to regulate church service, also within the framework of employment relationships based on private law, in accordance with their self-image. According to the Basic Regulations of Church Service in the Framework of Church Employment Relationships of 1993, leaving the Catholic Church is a serious breach of loyalty which does not permit the employee's continued employment. In proceedings for protection against dismissal, the labour courts have to weigh the fundamental rights of the employees - for example, to freedom of faith and conscience - against the right of self-determination of the religious society.

The Second Senate of the Federal Labour Court has - like the previous instances - dismissed the action of a social education worker employed by the defendant Caritas Association since 1992 against a dismissal based on his leaving the Catholic Church. The plaintiff worked in a social centre where school children up to the age of 12 were looked after in the afternoons. The religious affiliation of the children is irrelevant. Religious content is not taught. In February 2011, the plaintiff resigned from the Catholic Church. He told the defendant that his reasons for leaving were the numerous cases of abuse in Catholic institutions, the events surrounding the "Pius Brotherhood" and the Good Friday liturgy, which revealed an anti-Judaic tradition in the Catholic Church.

By resigning, the plaintiff violated his obligations of loyalty under his employment contract. Because of this, it was not reasonable for the defendant to continue employing him as a social education worker. According to the church's self-understanding, the plaintiff directly performed "service to people" and thus participated in the mission of the Catholic Church. As a result of his leaving the church, according to the defendant's understanding of faith, he lacked the suitability for continued employment within the framework of the community of service. It is true that the plaintiff's freedom of faith and conscience also carries great weight. However, in this case it had to take second place to the defendant's right of self-determination. In the present case, the defendant cannot be forced by the state courts to continue to employ an employee in the proclamation-related area who has not only failed to meet the requirements of church loyalty in a single point, but has renounced the Catholic religious community altogether. In contrast, the plaintiff's length of service and age were of no consequence. There are also employment opportunities for social education workers outside the Catholic Church and its institutions.

The plaintiff is not discriminated against by the dismissal. § 1, § 7 AGG. The unequal treatment because of his religion is justified according to § 9 (1), (2) AGG. A question of interpretation of Article 4(2) of Council Directive 2000/78/EC of 27 November 2000, which is relevant to the decision, did not arise in view of the type of work performed by the plaintiff.

Federal Labor Court, Judgment of April 25, 2013 - 2 AZR 579/12 -
Previous instance: LAG Baden-Württemberg - Mannheim Chambers -, judgment of March 9, 2012 - 12 Sa 55/11 -


Source: Press release of the Federal Labour Court


Goldberg Attorneys at Law 2013

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law

E-mail: info@goldberg.de