March 04, 2011
With the case of Siebenhaar v. Germany, the European Court of Human Rights is confronted for the third time in less than half a year with a case against Germany where one of the concerned parties is a church in the capacity of employer. The two previous cases are Obst v. Germany and Shüth v. Germany. All three cases concern a dispute resulting from the dismissal of an employee working for a church. Obst and Shüth were dismissed by the Mormon Church and the Catholic Church, respectively, for having external marital relationships. In the case of Siebenhaar, the applicant was dismissed because of her membership to and engagement in a religious group different from her employer’s.
The applicant, Mrs. Siebenhaar, was working in a day-care centre belonging to the protestant parish of Pforzheim. The protestant church in Germany requires loyalty from its employees. This specifically means that employees should not belong to or collaborate with organizations whose principles are in contradiction with the principles of the church. When the church-employer discovered that the applicant was also a member of the “Universal church of Humanity” and that she was even teaching primary lessons for this church, the applicant was dismissed.
Before the ECtHR, the applicant alleges a violation of her right to freedom of religion and argues that the national jurisdictions did not properly balance the several interests at stake. According to the applicant, more weight was given to the interests of the church. The Court however does not find a violation of the applicant’s freedom of religion in this case.
The main question examined by the Court is whether a fair balance has been struck by the national jurisdictions between the interests of both parties. The Court notes that several elements were taken into account by the national judge. The national jurisdictions first held that because of her membership to an organization whose principles are contrary to the principles of the church-employer, the applicant did not anymore offer the guarantee that the ideals of her employer would be respected. Secondly, it was also also held that the applicant’s activities in the Universal church could affect her work in the day-care centre. The national jurisdictions therefore concluded that the dismissal of the applicant was justified in order to keep the credibility of the protestant church towards the public and towards the parents of the children of the day-care centre and in order to avoid any risk of influencing these children. The ECtHR also notes that the young age of the applicant and the short period she was employed were taken into account. Therefore, the Court finds that the interests at stake were carefully balanced. The fact that decisive weight was given to the viewpoint of the church-employer in assessing the compatibility of the applicant’s engagement with its principles does not raise any problem in the eyes of the Court.
The Court adds to the argumentation of the national judge that when the applicant signed her employment contract, she was aware or ought to have been aware of the incompatibility of her membership of and engagement in the Universal church with her obligations towards the protestant church. Moreover, the Court does not find it relevant that the reasons of the applicant’s dismissal concern her non-professional life. (§ 46) In conclusion, the Court finds that the national authorities sufficiently showed that the requirement of loyalty was acceptable and that the only goal was to preserve the credibility of the church towards the public and the parents.
The reasoning in this judgment lies in the same line as in the cases of Obst and Shüth. A major difference though between these cases and the case of Siebenhaar, is that in the former cases a conflict arose between the right to private and family life of the applicants and the religious autonomy of the church, while in the present case the conflict concerns freedom of religion on both sides. On the one hand, the church invokes its freedom to organize itself according to its own religious rules, and on the other hand the applicant alleges a violation of her freedom of religion, since her religion was the cause of her dismissal. Like it did in the cases of Obst and Shüth, the Court examined the balancing exercise undertaken by the national judge and took several aspects of the applicant’s situation into account, such as her age, her chances to find another job and the nature of her job. It seems that the Court is embarking on a new line in cases where a church is involved in the capacity as an employer. In the past the Court/Commission gave mostly absolute weight to the interests of the church by arguing that an employee of the church had always the freedom to leave the church if he/she does not agree with its teachings. (See e.g. X. v. Denmark (1976), Karlsson v. Sweden (1988), Williamson v. UK (1995)) So from a technical perspective and, compared to the Court’s previous case law concerning employment by the church, this way of reasoning is a step forward.
At the same time, this case is however puzzling and raises serious questions. The applicant, Mrs. Siebenhaar, is an educator in a day care centre, which can be seen as an environment with vulnerable persons. However, no arguments of proselytizing behavior by the applicant were put forward by the Protestant church. The applicant’s membership to a religious organization and her engagements in this organization, were sufficient arguments for her dismissal. By ignoring the personal conduct of the applicant and by stating that no weight can be given to the fact that her activities took place outside the professional sphere the Court is differing from its article 10 case law. In the case of Vögt v. Germany (App. No. 17851/91) – which concerned a teacher who was dismissed because of political activities conflicting with the principles of the State-employer – the Court, sitting in Grand Chamber, was struck by the absolute nature of the duty of loyalty of civil servants towards the state:
“It is owed equally by every civil servant, regardless of his or her function and rank. It implies that every civil servant, whatever his or her own opinion on the matter, must unambiguously renounce all groups and movements which the competent authorities hold to be inimical to the Constitution. It does not allow for distinctions between service and private life; the duty is always owed, in every context.” (§ 59)
The Court also held that:
“Disciplinary punishment of such severity as dismissal had to be justified with reference to the personal attitude of the civil servant concerned.” (§56)
In sum, from the perspective of its previous case law concerning the church as an employer the Court is taking a step forward, but from the perspective of its article 10 case law, the Court is taking a step backward. In the end, the balance still seems to lean to the side of the church.