Recent news reports have brought to the fore growing tensions between the Malta Union of Teachers (MUT) and a number of church schools who are adamant that their teachers should first and foremost be good Christians.

The questions which arise are many, but clear answers are few: can the Church as an employer discriminate on religious grounds? Can the Church as an employer require its employees to follow its teachings? And to what extent can and should the Church intrude in its’ employees private lives?

The Equal Treatment in Employment Regulations, based on Directive 2000/78/EC, provide in Article 4(2) that where an employer “has an ethos based on religion or religious belief” such employer can, given a genuine justification, proportionately ‘discriminate’ on the grounds of religion, by only choosing those candidates who follow its ethos and beliefs.

More importantly, Article 4(3) provides that “employers whose ethos is based on religion or religious belief, shall have the right to require individuals working for them to act in good faith and with loyalty to the organisations’ ethos”.

On first glance it appears that the Church in its role as employer may have the right to choose who to employ and to bind such employees to follow its teachings, but do these rules apply to all employees, and if so to what extent?

The Church might have every right to demand that a catechism teacher is a practicing Catholic, but it is arguably harder to justify this requirement for any other employee where religious beliefs may have no real bearing on the subject matter being taught.

This issue is dealt with differently in a number of EU states and depends on their transposition and interpretation of the Directive. By way of example, UK law provides that “employment for the purposes of an organised religion” is interpreted strictly as being the appointment of priests or imams. Meanwhile in Spain, a distinction is made between ‘ideological jobs’ (e.g. religion teacher) and neutral jobs (e.g. maths teacher), where neutral teachers cannot be expected to conform to the employer’s ethos.

It seems only logical for a ‘church’ school to want to ensure that its staff upholds at minimum the basic teachings

The situation is different in Germany, and this has led to the cases Obst v Germany and Schüth v Germany where employees contested their employer’s decision to terminate their employment due to an extra-marital affair on the grounds that this violated their right to private and family life protected under Article 8 of the European Convention of Human Rights. In Obst the European Court of Human Rights confirmed the Church’s decision, providing that due to his high-level role as the head of PR of the Mormon Church in Europe, the Church had a right to preserve its credibility and its teachings, and the fact that Obst was relatively young could easily lead to him finding alternative employment.

On the other hand, in Schüth the ECHR claimed that although the Church was justified in its approach, the decision to terminate his employment was not proportionate in light of the fact that Schüth, who was a full-time organist in a Catholic parish, did not have any other alternative job opportunities, which made the decision to terminate extreme and disproportionate.

No cases of the sort have as yet made it to the Maltese Industrial Tribunal and therefore no interpretation of Maltese Law is available in our jurisdiction. Nonetheless, taking into account that the principles established by the ECHR are to hold ground also in Malta, it may be said that an employee’s right to private and family life may, to an extent, be set aside or conditioned when an employee starts working for a religious institution.

However, the extent of this – if at all – depends heavily on the circumstances of the particular case including inter alia whether the employment contract requires loyalty to a specific ethos, the nature and position of the employee in question, the severity of and the consequences arising from the breach of the institution’s ethos and, for instance, the alternative employment opportunities which the employee may have.

Indeed, it seems only logical for a ‘church’ school to want to ensure that its staff upholds at minimum the basic teachings of that church. Otherwise, why have church schools in the first place? After all, is it not the choice of the children’s parents or guardians to have their children educated in such an environment? On the other hand, is there cause to make a distinction between senior staff (such as headmasters, discipline masters), teachers of certain subject areas, and other staff?

The answer is not straightforward, but as a matter of principle, even the highest of authorities on the subject of human rights appears to have accepted, at least to an extent, that certain limitations are expected to apply and employees may therefore be obliged to comply with the ethos of the institution, albeit requiring a very delicate balancing exercise in all cases.

Thomas Bugeja is a junior associate with Fenech & Fenech Advocates.


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