Doctor Whose Divorce Led to Firing Prevails at Top EU Court

(CN) - A Catholic hospital in Germany discriminated by ousting a doctor from a supervisory role after finding out that he had divorced and remarried, the European Union’s highest court ruled Tuesday.

Having redacted all identifying information, the ruling out of Luxembourg this morning identifies the doctor in question only by the initials JQ. The doctor had been head of internal medicine at a hospital in Cologne for five years when he and his wife separated in 2005.

A year later, the doctor moved in with a new woman, and they got married in a civil ceremony after his divorce went through in 2008.

This was a problem, however, for IR — which is how the ruling refers to the hospital where the doctor worked.

Because JQ is himself Catholic, the hospital said he should have gotten an annulment before remarrying. It fired him in 2009 after learning about his second marriage, and JQ quickly filed suit.

Alleging unequal treatment, JQ noted that the hospital would not take any adverse employment action against a Protestant or atheist department head for remarrying.

The hospital was unsuccessful at every stage of litigation until it brought JQ’s case before the Federal Constitutional Court. In 2014, this body directed a lower court called the Federal Labor Court to determine whether JQ’s dismissal was legal under Germany’s General Law on Equal Treatment. Abbreviated in the ruling as the AGG, this 2006 statute transposed European Directive 2000/78, which itself established a general framework for equal treatment in employment.

The Federal Labour Court sought input on the EU framework, however, and the European Court of Justice resolved the case today after getting a recommendation in the spring from Advocate General Melchior Wathelet.

As Wathelet suggested, the court’s Grand Chamber determined that the hospital discriminated against JQ.

“Adherence to that notion of marriage does not appear to be necessary for the promotion of IR’s ethos, bearing in mind the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed,” the ruling states. “Therefore, it does not appear to be a genuine requirement of that occupational activity.”

This is corroborated, the ruling continues, “by the fact ... that positions of medical responsibility entailing managerial duties, similar to that occupied by JQ, were entrusted to IR employees who were not of the Catholic faith and, consequently, not subject to the same requirement to act in good faith and with loyalty to IR’s ethos.”

Ultimately this decision must come from the labor court. On remand, that body must decide whether the hospital has established that there is a probable and substantial risk that its ethos or its right of autonomy will be undermined.

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