Ideological Neutrality in the Workplace

AuthorJohn Olusegun Adenitire,Zoe Adams
Publication Date01 Mar 2018
The SCA’s conclusions on punitive damages are likely to prove the least con-
troversial aspect of AC B, and will be broadly welcomed. The reasoning which
underpins the finding that upkeep damages are not recoverable in contract or
tort as a matter of public policy, and in particular the basis and quantification
of the award of damages for loss of genetic affinity, may generate a more mixed
reaction. But consensus in this area of the law, in what the SCA described
as ‘one of the most difficult cases to come before this court thus far’,81 was
always going to be difficult to achieve. In McFarlane, Lord Steyn reasoned to
his conclusion by asking what the traveller on the London Underground – a
reincarnation of the man on the Clapham omnibus – would say about the pro-
posed legal remedy.82 ACB may be one of those cases that the traveller on the
Underground, or the Singapore MRT, would find too difficult to answer at all.
Ideological Neutrality in the Workplace
Zoe Adamsand John Olusegun Adenitire∗∗
This note assesses the decisions of the Court of Justice of the European Union in Achbita v
G4S Secure Solutions NV and Bougnaoui vMicropole SA, the first cases dealing with religious
discrimination under the Equal Treatment Directive 2000/43. Both cases concerned Muslim
women wishing to express their religious beliefs by wearing an Islamic headscarf while working
in a private undertaking. The Court held that the employees’ dismissal could not be justified
by reference to clients’ prejudices against the headscarf. However, dismissal could be justified if
pursued on the basis of a corporate policy of ideological neutrality which prohibited all visible
religious, political and philosophical symbols. This note criticises the latter part of the Court’s
decision for, inter alia, placing too much weight on an employer’s freedom to run its business
in spite of the grave effects this has on employees’ fundamental right to manifest their beliefs at
Achbita vG4S Secure Solutions NV1(Achbita)andBougnaoui vMicropole SA2
(Bougnaoui) were the first decisions in which the Court of Justice of the
European Union (CJEU) was required to address the question of religious
discrimination under the Equal Treatment Directive 2000/43 (the Directive).3
81 n 1 above at [210].
82 n 3 above, 76.
PhD Candidate, Pembroke College, University of Cambridge.
∗∗PhD Candidate, Fitzwilliam College, University of Cambridge. The authors are grateful to Pro-
fessor Catherine Barnard and to an anonymous reviewer for comments on previous drafts.
1 C-157/15 Achbita vG4S Secure Solutions NV ECLI:EU:C:2017:203.
2 C-188/15 Bougnaoui vMicropole SA ECLI:EU:C:2017:204.
3 Council Directive 2000/78/EC.
348 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(2) MLR 337–360

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