The withdrawal of an employee from the Catholic Church, while employed at a childcare facility operated by a Catholic Caritas association, can justify the termination of the employment relationship.
Pursuant to Art. 140 GG in conjunction with Art. 137 para. 3 sentence 1 WRV, every religious society orders and administers its affairs independently within the limits of laws applicable to all. This right extends not only to established churches but also to their associated charitable institutions. It enables them, within the limits of laws applicable to all, to regulate church service, even within the framework of employment relationships based on private law, in accordance with their self-understanding. According to the Basic Order of Church Service within the framework of ecclesiastical employment relationships from 1993, withdrawal from the Catholic Church constitutes a serious breach of loyalty that does not permit continued employment of the staff member. In unfair dismissal proceedings, labour courts must balance the fundamental rights of employees – such as freedom of belief and conscience – with the right to self-determination of the religious society.
The Second Senate of the Federal Labour Court – like the lower courts – dismissed the claim of a social pedagogue, employed by the defendant Caritas association since 1992, against a termination based on his withdrawal from the Catholic Church. The plaintiff worked in a social centre where schoolchildren up to 12 years of age were cared for in the afternoons. The religious affiliation of the children is irrelevant. Religious content is not conveyed. In February 2011, the plaintiff withdrew from the Catholic Church. To the defendant, he cited as reasons the numerous cases of abuse in Catholic institutions, the events surrounding the “Pius Brotherhood,” and the Good Friday liturgy, in which an anti-Jewish tradition of the Catholic Church becomes apparent.
By his withdrawal, the plaintiff violated his contractual loyalty obligations. Consequently, it was unreasonable for the defendant to continue employing him as a social pedagogue. According to the Church's self-understanding, the plaintiff directly rendered “service to humanity” and thus participated in the missionary mandate of the Catholic Church. As a result of his withdrawal from the Church, the plaintiff, according to the defendant's understanding of faith, lacks the suitability for continued employment within the service community. While the plaintiff's freedom of belief and conscience also carries significant weight, in this case, it had to yield to the defendant's right to self-determination. In the present case, the latter cannot be compelled by state courts to continue employing a staff member in a mission-related area who has not only failed to meet the Church's loyalty requirements on a single point but has entirely disassociated himself from the Catholic faith community. In contrast, the plaintiff's length of employment and age ultimately carried no weight. Furthermore, employment opportunities for social pedagogues exist outside the Catholic Church and its institutions.
The plaintiff is not discriminated against by the termination within the meaning of §§ 1, 7 AGG. The unequal treatment due to his religion is justified under § 9 para. 1, para. 2 AGG. A question of interpretation of Art. 4 para. 2 of Council Directive 2000/78/EC of 27 november 2000, relevant to the decision, did not arise given the nature of the activity 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 Labor Court
Goldberg Attorneys at Law 2013
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
