Readers with long memories may recall the judgment in Schüth v Germany  ECHR (No. 1620/03). The claimant, a Roman Catholic parish and deanery organist and choirmaster, had left his wife and settled with a new partner with whom he had a child. He was dismissed in 1998 on the grounds that his functions were so closely connected to the proclamatory mission of the Church that the parish could not continue employing him without losing credibility. He sued unsuccessfully for wrongful dismissal in the domestic courts and his constitutional challenge was rejected by the Federal Constitutional Court.
In 2003, he took his case to Strasbourg, and in 2010 the ECtHR decided that his dismissal had breached his rights under Article 8 ECHR (private and family life) and awarded him €40,000 in damages. It ruled that the German labour courts which had considered his original case had paid no regard to his de facto family life with his new partner or to the legal protection afforded it – and while Mr Schüth had entered into a duty of loyalty towards the Roman Catholic Church that limited his right to respect for his private life to some degree, his signature on the contract could not be interpreted as an unequivocal commitment to celibacy in the event of separation or divorce.
Fast forward to 2018, when Mr Schüth sued his former parish and diocese for loss of earnings and pension contributions arising from the termination of his contract on 31 March 1998. He asserted that the dismissal process had been flawed because the reason given for his dismissal had not been stated explicitly in the basic document [Grundordnung] governing the Church’s employment relationships – and that fact had been obvious to everyone since the document’s entry into force. His claim was dismissed at first instance and by the Düsseldorf Regional Labour Court [Landesarbeitsgericht].
On appeal to the Federal Labour Court [Bundesarbeitsgericht] he was equally unsuccessful. In its judgment handed down yesterday, 19 December [19.12.2019 8 AZR 511/18: press release here], the Court held that if the termination of an employment relationship had been legally established, damages could be awarded as compensation for lost wages and pension contributions only in the case of intentional damage contrary to s.826 of the Civil Code (which states that ‘A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage). The Regional Labour Court’s conclusion that the requirements of s.826 had not been met was not unreasonable.
[With thanks to Dr Georg Neureither]