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European Human Rights Court Rules on Right of Churches To Dismiss Employees for Private Behavior

By Howard M. Friedman

In a press release last week, the European Court of Human Rights announced two Chamber Judgments, ruling for the first time on the application of the European Convention on Human Rights application to the dismissal of church employees for conduct in the sphere of their private lives. Article 8 of the ECHR protects the right to respect for family and private life.

In Obst v. Germany, the court upheld action by the German courts in permitting the Mormon Church to dismiss Michael Obst, the Church's director of public relations for Europe, for having an affair with another woman while he was married. As described by the press release, the European Court held that:

the German labour courts had taken account of all the relevant factors and undertaken a careful and thorough balancing exercise regarding the interests involved. They had pointed out that the Mormon Church had only been able to base Mr Obst?s dismissal on his adultery because he had informed the Church of it by his own initiative. According to the German courts? findings, his dismissal amounted to a necessary measure aimed at preserving the Church?s credibility, having regard in particular to the nature of his post.

However, in the second case, Schuth v. Germany, the European Court held that the German courts had violated Art. 8 of the ECHR in permitting a Catholic parish to dismiss Bernhard Schuth, its organist and choirmaster, for living with a new partner after he separated from his wife. The press release describes the views of the European Court:

the [German] labour court of appeal had confined itself to stating that ... [Schuth's] functions were ... so closely connected to the Catholic Church?s proclamatory mission that the parish could not continue employing him without losing all credibility. That court had not examined this argument any further but appeared to have simply reproduced the opinion of the Church employer on this point. 

The labour courts had moreover made no mention of Mr Schüth?s de facto family life or of the legal protection afforded to it. The interests of the Church employer had thus not been balanced against Mr Schüth?s right to respect for his private and family life, but only against his interest in keeping his post. A more detailed examination would have been required when weighing the competing rights and interests at stake.

The full text of each of the decisions are available in French: Affaire Obst c. Allemagne, (ECHR, Sept. 23, 2010) and Affaire Schuth c. Allemange, (ECHR, Sept. 23, 2010). These Chamber Judgments can still be appealed to the Grand Chamber. [Thanks to Pew Sitter for the lead.]

Full post as published by Religion Clause on September 29, 2010 (boomark / email).