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Requirement to follow employer’s religious ethos must be a genuine occupational requirement

15 November 2018

The European Court of Justice (ECJ) in the case of IR v JQ recently considered the circumstances in which an employee may be dismissed for failing to follow the religious ethos of the employer – an issue of particular relevance for faith-based schools.

The case concerned JQ, the head of the Internal Medicine Department of IR which was a Catholic, not-for-profit organisation in Germany which operated, among other things, various hospitals in Germany.

JQ was a Roman Catholic and, due to being Catholic, was required to behave with loyalty towards the religious ethos of his employer, whereas a managerial employee of another faith or of no faith was not required to do so.

JQ had a Catholic marriage but separated from his first wife in 2005 and they were granted a divorce in 2008. He then went on to marry his second wife in a civil ceremony without an annulment. This second marriage was invalid under canon law and as a result of this, IR dismissed JQ.

IR asserted that JQ had breached his obligations under his employment contract and therefore it was entitled to dismiss him. JQ alleged that the fact that this requirement applied to him, and not to a similar head of department of another faith or no faith, was discriminatory.

The German Federal Labour Court sought a ruling from the ECJ as to whether the fact that German law allows religious organisations to treat employees of different faiths differently with regard to following the employer’s religious principles was contrary to the EU Equal Treatment Directive.

The ECJ held that the nature of the activities of the organisation or context in which they are carried out may justify differential treatment if they constitute a genuine, legitimate and justified occupational requirement. However, the requirement must be necessary in relation to the occupational activities carried out in light of the ethos, in other words it must be proportionate.

In this case it did not consider that the notion of marriage was necessary to promote the company’s ethos given that the activities being carried out, namely provision of medical advice and care in a hospital setting and JQ’s specific role of head of department, did not require that Catholic rules on marriage were followed. People attending the hospital would be concerned about his medical qualifications and experience, rather than whether or not he followed Catholic doctrine. This was particularly considered to be the case as similar posts to JQ’s were held by employees who were not Catholic and it could therefore not be a requirement of the position he held that he consistently followed Catholic principles.

Comment

The law on hiring staff for faith-based schools is complex and can vary significantly depending on the type of school concerned. However, this case confirms the existing position regarding the use of occupational requirements for faith-based schools that wish to ensure their employees follow their religious ethos. It remains important to show that an occupational requirement to follow a particular religious ethos or doctrine is a genuine, legitimate and justified occupational requirement and is proportionate with regard to the activities carried out by the school and that employee in particular.

For instance, a requirement that that an RE Teacher must be of a particular faith is far more likely to be justifiable than a similar requirement for a member of the accounts department or catering staff. If there is a genuine need for the role to be performed by someone of a particular faith, the requirement should be applied consistently amongst the relevant employees, otherwise – as in this case – there is the risk that it will fail.

By Adam Taylor

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