Religion and the genuine occupational requirement: Schüth again

Hard on the heels of the CJEU Grand Chamber judgment in JQ v IR [2018] EUECJ C-68/17 – which we noted here – comes a domestic German ruling on dismissal for breach of Roman Catholic moral teaching.

Readers with long memories will no doubt recall the judgment in Schüth v Germany [2010] ECHR (No. 1620/03), in which Mr Schüth, the parish organist at a Roman Catholic church in Essen, had been dismissed after he separated from his wife and went to live with a new partner with whom he had a child. The ECtHR held that his treatment had been a violation of Article 8 ECHR (respect for private and family life).

Mr Schüth was recently back in court again. The Düsseldorf Labour Court [Landesarbeitsgericht or LAG] dismissed his claim for €275,067 in damages for lost earnings and, for the period since January 2017, €1,449 per month. His claim against the parish and against the Diocese of Essen was unsuccessful because it was established that the termination of his employment by the parish when he entered the new partnership after separation from his wife was legally valid. That had finally been decided by the domestic courts in earlier proceedings; and Mr Schüth had failed to demonstrate any bad faith on the part of the parish or the diocese that could overturn those decisions.

According to the Church’s understanding of its canon law, Mr Schüth’s permanent extramarital relationship was in itself a suitable ground for his dismissal because the maintenance of a permanent extramarital relationship was a violation of the Roman Catholic principle of the exclusive and lifelong nature of marriage.

The ECtHR had concluded that the German courts had not given sufficient weight to the question as to whether or not Mr Schüth, as a parish musician, should be under an increased demand for loyalty to the Church’s teaching. The Second Vatican Council had assumed that church music was a necessary and integral part of the liturgy; and in JQ v IR the CJEU Grand Chamber stated that a legitimate professional requirement of a church might arise from a particular activity if, for example, it was connected with participation in determining the ethos of the church concerned or contributing to its proclamatory mission. Moreover, the controversy as to whether or not church musicians participated as co-workers in the liturgy had already been considered at the first dismissal proceedings.

In the judgment of the LAG, the decision of the ECtHR in favour of Mr Schüth was no reason for the domestic courts to resume the original dismissal proceedings and the chamber to which the claim had been referred did not have to carry out a completely new substantive review of the basis of the dismissal. Any challenge to the validity of the previous decisions on the basis of a claim for damages was out of the question because the strict conditions for revisiting the matter had not been met, even taking into account the decision of the ECtHR.

[With thanks to Dr Georg Neureither for reading this post in draft]

Cite this article as: Frank Cranmer, "Religion and the genuine occupational requirement: Schüth again" in Law & Religion UK, 18 September 2018, https://lawandreligionuk.com/2018/09/18/religion-and-the-genuine-occupational-requirement-schuth-again/

4 thoughts on “Religion and the genuine occupational requirement: Schüth again

    • Maybe (though I don’t think Article 8 works like that): but in the earlier proceedings, the ECtHR held that there had been a violation of his second wife’s Article 8 rights!

  1. “Since the decision of the ECtHR for the plaintiff is no reason to resume the original dismissal proceedings, the cognizant chamber did not have to carry out a complete new substantive review of the effectiveness of the dismissal. An infringement of the validity of the previous decisions on the basis of a claim for damages was out of the question, because the strict conditions for doing so are not met, even taking into account the decision of the ECtHR.”

    Do I understand this correctly? After exhausting domestic remedies for dismissal, the plaintiff complained to the ECtHR that his domestic remedy had been unattainable because the domestic courts had disposed of his dismissal claim in a manner that infringed his Convention rights. The ECtHR found that the way the domestic courts had handled the dismissal claim had indeed violated the plaintiff’s Convention rights. The domestic courts, asked to revisit the failed dismissal claim, say that the ECtHR’s finding of an infringement of covention rights in the handling of the dismissal claim doesn’t mean they have to revisit the failed dismissal claim.

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