The increasingly-complex issue of the employment status and employment rights of lay employees of religious organisations has come before the European Court of Human Rights yet again.
In Fernández Martínez v Spain  ECHR 6030/07 the applicant, José Antonio Fernández Martínez, was ordained a Roman Catholic priest in 1961 but in 1984 applied for a dispensation from celibacy. He then married in a civil ceremony and taught Roman Catholic religion and morals in a state high school from 1991 onwards, his contract being renewed annually by the Bishop of Cartagena.
In 1996 a newspaper reporting on an organisation called the Movement for Optional Celibacy published a photograph of him attending one of the Movement’s meetings together with his wife and children. In 1997 the Vatican dispensed him from celibacy but stated that anyone so dispensed was barred from teaching the Catholic religion in public institutions unless the local bishop decided otherwise “according to his own criteria and provided that there is no scandal”. In September 1997 the Diocese of Cartagena told the Ministry of Education that it would not renew his contract for the 1997/98 school year and the Ministry notified him of that decision.
An employment tribunal ruled that Mr Martínez had been discriminated against and ordered his reinstatement but that was overturned on appeal, on the grounds that the Bishop had a prerogative right to avoid public scandal, that for the purposes of Article 10 §2 ECHR (expression) the restrictions imposed on the applicant’s rights were proportionate to the aim pursued and that, in any case, he had been employed on a temporary contract that had simply expired and had not, therefore, been dismissed. The Constitutional Court dismissed a further appeal .
At Strasbourg he argued that his effective dismissal had violated his rights under Article 8 (private and family life) and that two of the Constitutional Court judges should have not have taked part in teh hearing because their religious beliefs favoured the Church, contrary to Article 6 § 1 (fair hearing).
As to Article 8, the Third Section (Saiz Arnaiz J dissenting) dismissed the appeal. Spanish law provided both for the autonomy of religious communities and for state religious neutrality and the religious or moral criteria on which to renew (or not to renew) a candidate’s contract were matter for the Church authorities. The domestic courts could weigh the competing rights and consider whether the decision not to renew the contract had been based on anything other than strictly religious factors – but that was all. The grounds for non-renewal had been strictly religious and the Church authorities had been acting in the sphere of religious autonomy. As to the complaint under Article 6 §1, he had not raised it until after the Constitutional Court’s judgment and had, in effect, failed to exhaust domestic remedies.
Comment: Fernández Martínez follows on three fairly recent German cases about lay employment rights that, together, gave a somewhat mixed message:
- Obst v Germany  ECHR 425/03 (23 September) [French text only] in which it was held that the dismissal by the Church of Jesus Christ of Latter-day Saints of its Director of Public Relations for Europe on grounds of adultery had not breached Article 8 ECHR (private and family life);
- Schüth v Germany  ECHR 1620/03 (23 September) [French text only] in which it was held that the dismissal of Roman Catholic parish and deanery music director who had left his wife and settled with a new partner with whom he had a child had breached his rights under Article 8 ECHR; and
- Siebenhaar v Germany  ECHR 18136/02) (3 February) [French text only], which upheld the dismissal without notice of a childcare assistant in a day-nursery run by a Protestant parish in Pforzheim on the grounds of her involvement in a religious community, the ‘Church Universal / Brotherhood of Mankind’, whose teachings were deemed to be incompatible with those of the Protestant Church.
It is difficult to extract any consistent principle from the three German cases and Fernández Martínez. If Ms Siebenhaar should have known that membership of the Church Universal / Brotherhood of Mankind was incompatible with working for a day-nursery run by the Evangelischen Kirche in Deutschland (EKD) and Mr Obst that the LDS did not look kindly on adultery then, equally, Mr Schüth should have known that the Roman Catholic Church was just as disapproving of adulterous relationships. Moreover, the justification in Siebenhaar that the German system of labour courts complied with its obligations under the ECHR does not help us, given that exactly the same system of labour courts was in place in the cases of Obst and Schüth. Nor does the question of public profile appear to give any guidance: if Mr Schüth was fairly obscure Ms Siebenhaar was, if anything, even more so.
The difference between Obst and Schüth on the one hand and Siebenhaar on the other seems to turn on the fact that the first two cases involved a conflict between the right to private and family life under Article 8 and the religious autonomy of the two Churches in question, whereas the argument in Siebenhaar was about the right to freedom to manifest under Article 9: the EKD was claiming the right to organise itself in accordance with its own ecclesiology while Ms Siebenhaar was arguing simultaneously that her dismissal had breached her own Article 9 rights.
With Fernández Martínez we are back, primarily, with Article 8 – but on this occasion the Court was prepared to concede a greater degree of autonomy to the Roman Catholic diocesan authorities than it was in Schüth and to give correspondingly less weight to the fact that Mr Martínez was married with five children.
For the subsequent Grand Chamber judgment, see Fernández Martínez v Spain  ECHR 615: the GC rejected the appeal by nine votes to eight.