The Equal Treatment DirectiveFootnote 1 ‘respects and does not prejudice the status under national law of churches and religious associations or communities in the member states and … of philosophical and non-confessional organisations’ and empowers member states to make ‘specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity’. Specifically, Article 4 permits member states to make such provision taking account of their ‘constitutional provisions and principles, as well as the general principles of Community law’. Crucially, Article 4 concludes as follows:
… this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos.
In Germany, employment by religious organisations has recently been the subject of two linked but separate cases before the European Court of Human Rights (ECtHR), Obst v Germany Footnote 2 and Schüth v Germany.Footnote 3
THE BACKGROUND
The status of churches and religious societies in German law is governed by Article 140 of the Basic Law (Grundgesetz) 1949.Footnote 4 Many faith communities have legal entity status in public law which allows them to benefit from the church tax and employ staff – though that fact does not necessarily make them public authorities. Taken together, the Roman Catholic Church and the Evangelische Kirche in Deutschland (EKD) are the largest employer after the Federal Government; their major charities, Caritas (Catholic) and Diakonie (EKD), employ between them nearly 950,000 people in a wide range of social service activities. Both Churches regard this as part of their mission of proclamation, fulfilling the commandment to love one's neighbour.
THE 1985 DECISION OF THE FEDERAL CONSTITUTIONAL COURT
On 4 June 1985 the Federal Constitutional Court (Bundesverfassungsgerichts) issued a landmark decision about the power of churches to dismiss employees for violating their obligations of loyalty. At issue were the dismissal of a doctor in a Roman Catholic hospital who had signed a letter in the weekly magazine Stern objecting to a statement by a board member of the Bavarian Medical Association comparing those who supported abortion to Nazi mass-murderers and the dismissal of an employee of a Roman Catholic home for young people who had withdrawn from the Church. The Church appealed successfully against rulings of the lower courts in favour of the two dismissed workers.Footnote 5
The Constitutional Court noted that religious societies had a constitutional right to settle their own affairs within the limits of the general law and that that applied not only to the Churches themselves but to any institution affiliated to them. This encompassed the right to choose the necessary personnel to accomplish their mission and to conclude contracts of employment with them. The labour law of the state applied equally to the Churches as to everyone else; but that did not negate the Churches' own role in labour relations and their constitutional guarantee of autonomy (Selbstbestimmungsrecht) included the content of their employment contracts.
In the interests of their own credibility, the Churches could base their employment contracts on a model of Christian community service and require their employees to maintain the teachings and basic obligations applicable to any of their members. That did not mean, however, that the legal status of Church employees became ‘clericalised’. The law was concerned only with the nature and extent of the obligations of loyalty arising from employment contracts; and that did not impose upon the employee an ecclesial status that extended to the whole of his private life.
THE LEGAL POSITION OF RELIGIOUS COMMUNITIES
In both cases under consideration the Fifth Section ECtHR noted that religious communities were organised structures. Article 9 ECHR (thought, conscience and religion) had therefore to be interpreted in light of Article 11 (assembly and association) which safeguarded associative life against unjustified state interference. In a democratic society autonomy was indispensable for pluralism and basic to the protection afforded by Article 9; therefore, except in very exceptional cases, Article 9 rights excluded any governmental discretion regarding the legitimacy of religious beliefs or their means of expression.Footnote 6
It was also necessary to give special emphasis to the role of national decision;Footnote 7 and, again in both cases, the Court took the view that, in the absence of any consensus among member states of the Council of Europe on the relative importance of the interests at stake or how best to protect them, there was a wide margin of appreciation.
Finally, the system of Labour Courts and the Constitutional Court's supervisory jurisdiction fulfilled Germany's positive obligations in respect of labour disputes. The Court also noted that the Labour Courts were bound by the fundamental religious tenets of ecclesiastical employers provided that those tenets did not contradict the basic principles of legal order.
OBST
The Church of Jesus Christ of Latter-day Saints (LDS) appointed Obst Director of Public Relations for Europe in 1986. His contract included a ‘good behaviour’ clause and a requirement that employees of his status ‘be members of the [LDS]. If they lose their membership for any reason or consistently violate the principles of the Church, dismissal – without notice in severe cases – must follow’. In 1993 he told his pastor that his marriage had been deteriorating and that he had had an affair. Following the pastor's advice, he admitted this to his superior, was dismissed without notice and subsequently excommunicated.
In 1995 the Frankfurt Labour Court declared his dismissal void and that ruling was upheld on appeal; but the Federal Labour Court disagreed, on the grounds that Obst had not honoured the obligations in his contract, and remitted the case. The Federal Labour Court cited in support of that conclusion the 1985 judgment of the Constitutional Court that Churches had the right to settle their own affairs within the limits of the general law. Labour Courts were therefore bound to respect Church employers' religious and moral precepts to the extent that those precepts did not conflict with fundamental legal principles. Given Obst's responsibilities as Director of Public Relations for Europe, his dismissal had been necessary in the interests of the LDS's credibility; nor had the Church been obliged to give him any advance warning, since Obst must have been aware of the severity of his misconduct. Following the remittal, in 1998 the Labour Court of Appeal overturned the first-instance judgment. Obst's further appeal to the Federal Labour Court was unsuccessful and in 2002 the Federal Constitutional Court dismissed his constitutional complaint, citing its own judgment of June 1985.
Before the Fifth Section ECtHR, Obst argued that dismissal could only be pronounced in the case of a remarriage and not because of an extramarital relationship; moreover, to force employees to follow the Church's precepts outside the professional sphere was capricious, since it would make dismissal or retention dependent on the personal views of the Church's Directors of Human Resources. Nor had his contract of employment with the LDS waived his right to private and family life under Article 8 ECHR. Finally, the Federal Constitutional Court's ruling of 1985 did not relate to the private sphere. The Government contended that though the LDS was a corporation under public law it was not a public authority, that there was no interference by public authorities in the applicant's rights and that the matter was within the domestic margin of appreciation. The LDS, as third party intervener, agreed with the Government's conclusions and stressed that a finding of violation by the Court would seriously interfere in the labour relations of all the religious communities across Europe.
The Fifth Section noted that, rather than complaining of state action, Obst had complained of state inaction in failing to protect his privacy against his employer's interference and that the LDS, though a public corporation, had no public authority. The domestic courts had taken all relevant factors into account and had conducted a detailed balancing exercise and their findings were not unreasonable. The fact that they had recognised the LDS's right to require a duty of loyalty from its employees and had given more weight to the LDS's interests than to the complainant's did not, of itself, raise an issue under the Convention. Though the application was admissible, the Court held unanimously that there had been no violation of Article 8.
SCHÜTH
Schüth was organist and choirmaster of a Roman Catholic parish in Essen. His terms of employment of January 1984 stated inter alia that the Church's regulations on labour and remuneration were part of his contract and that a serious breach of the Church's principles would be good reason for dismissal without notice. He also took an oath ‘to fulfil [his] professional obligations and to respect and observe the ecclesiastical requirements’. In 1985 he was also appointed Deanery Director of Music. In 1994 he separated from his wife and this became public knowledge in 1995. In July 1997 it became generally known that his partner was pregnant and he was dismissed as from 1 April 1998 for breach of his duty of loyalty under the Church's ‘basic rules’ for employees.Footnote 8 Following Schüth's dismissal he and his wife divorced.
Article 4 of the ‘basic rules’ obliges Catholic employees … to respect and comply with the fundamental principles of Catholic moral and religious precepts. The testimony of a life led in accordance with these principles is particularly important with regard to employees who work in pastoral care, catechesis or education or who are entrusted with a missio canonica … They are obliged not to endanger, by their personal lifestyle or their professional conduct, the credibility of the [Catholic] Church and the institution where they work.
Under Article 5, where an employee no longer meets the employment criteria the employer must try to remedy the situation by counselling: either by a clarificatory discussion (klärendes Gespräch), a warning (Abmahnung) or formal reprimand, transfer or change in contract, with dismissal as the last resort.
In 1997 the Labour Court held that Schüth's sacking had not terminated his contract of employment because, under Article 1 §1 of the Law on Protection against Dismissal, his conduct had ‘not yet’ (noch nicht) justified that course. Nor was he subject to ‘enhanced obligations of loyalty’ (gesteigerte Loyalitätsobligenheiten) because he did not work either in a pastoral or in a catechetical capacity, he had no missio canonica and he was not ‘senior staff’ (Leitender Mitarbeiter) within the meaning of Article 5 §3 of the ‘basic rules’. The defendants had failed to prove that Schüth's duties as Deanery Director of Music were an executive function; and under Articles 5 §§1 and 2 of the ‘basic rules’ the parish should first have held a clarificatory interview or issued a warning before dismissing him, particularly given that he had served fourteen years and had virtually no chance of finding a secular job as an organist. In the circumstances, fathering a child out of wedlock was not misconduct serious enough to warrant summary dismissal.
In 1998 the Labour Appeal Court of Düsseldorf rejected the parish's appeal. Though, given the proximity of his work to the mission of proclaiming the Church, his sacking had been possible under Article 5 §4 of the basic rules, it had been procedurally flawed because the parish had not proved that the Area Dean had tried to encourage Schüth to end his extramarital affair.
In 1999, on an appeal in cassation, the Federal Labour Court quashed the ruling of the Labour Appeal Court. Given the lack of clarity as to whether or not Schüth's functions were subject to enhanced obligations of loyalty, it was unclear whether or not he could have known with sufficient predictability which Articles of the ‘basic rules’ applied to him; however, the lower court had been wrong not to cite the Area Dean as a party in order to establish whether or not he had tried to encourage Schüth to give up his extramarital relationship.
Since the facts were unclear, the Federal Court remitted the case to the Labour Appeal Court. In addition, however, the Federal Court further held that a contract of employment with a Church was subject both to secular employment law and to the institutional guarantee to the Churches allowing them to settle their affairs independently. Therefore, the Churches' own employment laws were to be applied in conjunction with state law. The Basic Law reflected the principle of the autonomy of the Roman Catholic Church; and secular employment law could not call into question the special nature of the service of the Church. The Church was therefore entitled to base its employment contracts on a model of Christian community service and, in particular, on respect for its moral teaching as provided in Article 4 §1 of its ‘basic rules’. Moreover, the Court noted that though adultery was no longer a crime in canon law, the Catholic Church regarded marriage as a sacrament and therefore indissoluble.
The Federal Court noted that when the Labour Court applied secular employment law it was still bound by the requirements of religious societies; however, in doing so the Labour Court was obliged not to contravene the basic principles of legal order – in particular the prohibition of arbitrary notions of ‘morality’ and ‘public order’ – and religious societies should not bind their employees to requirements of excessive loyalty. However, the teachings of the Catholic Church about fidelity in marriage did not contradict secular law; and the appellate court had been correct to conclude that Schüth's conduct had been serious personal moral failure as defined in Article 5 §2 of the Church's basic rules.
In February 2000 the Labour Appeal Court of Düsseldorf allowed the parish's appeal against the 1997 decision of the Labour Court. After hearing the Dean as a party, the Court concluded that both he and the parish had been correct in concluding that a prior warning was unnecessary. According to the Labour Appeal Court, the interests of the parish far outweighed those of the applicant. In May 2000 the Federal Labour Court declared inadmissible the applicant's application to appeal and in July 2002 the Federal Constitutional Court rejected the applicant's constitutional complaint because he had no reasonable chance of success.
Before the Fifth Section, Schüth complained that he had been fired solely because of his extramarital relationship, in breach of Article 8 ECHR, and that the domestic courts had expanded the scope of the law in a totally unpredictable way: dismissal could only be pronounced in the case of remarriage, not because of an extramarital affair. The Government responded that because the parish was not a public authority there had been no interference by public authorities in Schüth's rights. As in Obst, the Government argued for a wide margin of appreciation in matters of religion. The Catholic Diocese of Essen, intervening, agreed with the Government and argued that a finding of violation of the Convention would be a serious interference in Church employment contracts; neither the Roman Catholic Church nor the EKD would any longer be able to ask their employees to meet specific professional obligations responding to their specific missions. The diocese also emphasised the special role of music in Catholic liturgy and the participation of the person in charge of music in proclaiming the mission of the Church.
Again as in Obst the Court conceded the wide margin of appreciation; the main issue was whether the state was required as part of its obligations under Article 8 to recognise Schüth's right to respect for his privacy as against his contractual obligations. In coming to its conclusion, the Court noted that the Labour Court had made no mention of ‘family life’. The interests of the Church and the employer had not been balanced with Schüth's rights under Article 8, but only with his interest to be kept in employment. The Court of Appeal had not examined the question of the proximity of Schüth's duties to the mission of proclaiming the Church; instead, it seemed to have accepted without demur the views of the Church on that point. A more careful assessment should have been made in balancing the competing rights and interests, especially where an individual right of a complainant was set against a collective right.
The Court accepted that Schüth had a duty of loyalty to the Church which limited his right to respect for his privacy and that such contractual limitations were permitted by the Convention if freely accepted. However, his signature on a contract could not be regarded as an unequivocal personal pledge of permanent celibacy in the case of separation or divorce. That issue went to the essence of the right to respect for individual privacy, especially as Schüth was not subject to obligations of enhanced loyalty. The Court concluded that the Labour Courts had not adequately explained why the interests of the parish far outweighed those of the applicant and had not balanced the conflicting rights in a manner consistent with the Convention. There had therefore been a violation of Article 8.
CONCLUSION
When William Fittall, Secretary General of the General Synod of the Church of England, and Richard Kornicki, of the Catholic Bishops Conference of England and Wales, gave evidence in 2009 during the House of Common committee stage of the Equality BillFootnote 9 they argued that the Bill as drafted represented a substantial narrowing of the exemption for religion under the law as it stood at the time.Footnote 10 Kornicki argued that it was based on ‘a misunderstanding of how religion works. It is not simply an activity that takes place once a week in a particular place; it is about the whole of life’,Footnote 11 while Fittall suggested that both Churches would in some circumstances ‘particularly for representational or pastoral roles, want people to lead lives that are consistent with the teaching of that particular Church or faith’.Footnote 12
The judgments in Obst and Schüth seem, potentially at least, further to narrow the current exemption in respect of lay employees. In both cases the Court held that the employing organisations' positions on marriage and marital fidelity did not contradict the basic principles of legal order. Nevertheless, that fact was not of itself determinative and whether or not adultery was a proper ground for dismissal seemed to depend entirely on the circumstances of the case. So in the minds of the judges in Strasbourg the answer to the question ‘Is an adulterous relationship compatible with working for a religious organisation?’ seems to be connected quite closely with the public profile of the employee in question: ‘yes’ for a parish and deanery organist, ‘no’ for a senior figure in the organisation's central administration. But what if the claimants in Obst and Schüth had been, respectively, a very junior accounts clerk in a regional office of the LDS and the Director of Music at a major cathedral? How might the test have been applied then?
