Germany Special: Divorce, Remarry, Get Fired

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In Germany, labor law regulates practically every aspect of the employer-employee relationship, and terminations are difficult. With one exception: religious organizations. They have been granted a special legal status that exempts them from labor laws, and even from certain aspects of the constitution. Not surprisingly, they frequently fire employees on moral grounds. And today, the Federal Labor Court, the highest court for labor cases, affirmed their right to do so. More specifically, it affirmed that the Catholic Church may fire employees for having remarried after a divorce.

Religious employers in Germany are economic giants. According to a 2010 study by Deutsche Bank Research, they employ 1.54 million people, or 5.6% of all employees, in 102,000 facilities. By comparison, industrial powerhouse Siemens employs 400,000 and VW, Germany’s largest carmaker, employs 370,000. They are active in growing sectors of the economy: healthcare, retirement homes, elder care, hospices, etc. For example, they own 38.5% of all clinics and 37.5% of all hospitals. They have 3.7 million beds. And in daycare centers, they’re king of the hill with 51.1%.

In 1985, the Federal Constitutional Court granted religious organizations the right to design their own labor regulations—based on the right of self-determination that is enshrined in the Constitution, along with religious freedom and the separation of state and church. The latter, however, is illusory. For example, the Ministry of Finance collects hefty “church taxes” (article in English) from taxpayers and distributes them to religious organizations.

In the case before the Federal Labor Court, a medical director of a Catholic hospital in Düsseldorf separated from his wife in 2005 then lived with another woman for two years. In 2008, six months after the divorce had been finalized, he married his companion. In 2009, his employer found out about it and fired him for cause: His second marriage was a violation of the loyalty duty to the moral codex of the Church. Since the Church does not recognize divorce, the first marriage continues to exist in its eyes. He sued and prevailed in the state trial court and in the appeals court. His employer then appealed to the Federal Labor court.

“He knew exactly that he violated his labor contract” with this remarriage, explained Burkard Göpfert, the lawyer for the hospital.

Unions have long called for an end to these special rights of the Church. They consider them a pre-democratic practice where religious entities believe they can decide for themselves which constitutional rights and laws don’t apply to them. And the argument that you don’t have to work for them doesn’t fly since they’re the largest employers in certain sectors, and jobs are scarce.

The right to self-determination takes on a curious hue in light of the recent scandals and court cases that have detailed how the Church first tolerated and then protected pedophiliac members of the clergy. And more and more Germans consider the law itself a scandal.

Interestingly, while the judges affirmed the Church’s right to terminate employees for violations of religious doctrine, they also ruled for the employee, based on the particularities of the case, thus invalidating his termination. Both claimed victory. And nothing was solved.

The Federal Labor Court has ruled against numerous employees of Catholic daycare centers and schools. Most recently, it affirmed the 2004 termination of an organist and choir leader who’d been accused of having an extramarital relationship. However, the aggrieved took his case to the European Court of Human Rights in Strasbourg, which, in September last year, interpreted his dismissal as a violation of his fundamental right to private life.

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