Survey of religious freedom law 'impressive'

Paul Diamond is Standing Counsel to the Christian Legal Centre and a leading human rights barrister, specialising in Christian freedom cases. Here he reviews Andrew Hambler's book, Religious Expression in the Workplace and the Contested Role of Law, Routledge 2015.
 

 

Andrew Hambler’s Religious Expression in the Workplace and the Contested Role of Law (Routledge, 2015), is one of the first textbook treatments of workplace religious expression to focus on decisions from our domestic courts. It is a fine contribution to the literature.

 

The decision to concentrate on domestic case law, rather than abstracted principles of the wider human rights discourse, gives the work an immediate, practical edge.

 

The scope of Hambler’s research is impressive. He appears to examine every religious freedom case to have come before the UK courts and tribunals. I practise in this field, yet some of the cases were certainly new to me! The work also includes discussion of the application of decisions from the UK’s higher courts and the European Court of Human Rights.

 

This makes the book an invaluable reference for the practitioner. All of the relevant case law is carefully set out, whilst the inclusion of a plethora of academic literature citations makes further research easy. 

 

With religious liberty law in the UK still in its infancy, we will need subsequent editions to keep pace with the expansion of the corpus of jurisprudence in this increasingly important area. This first edition gives us every confidence that Hambler is up to the challenge.

 

Coverage of the cases is comprehensive, but the application of many of the cases needs to be carefully considered. Decisions of the Employment Tribunal and Employment Appeal Tribunal are rarely seen as binding on other courts, except in very contextually similar situations. Consideration of the implications of this may prove profitable in future editions.

 

Hambler addresses pragmatic questions that are vitally important in this field. He considers both what constitutes a workplace (is it a public place or a private space?) and what constitutes religious faith (what, for example, makes it different from a hobby?). He examines how religious expression outside of the workplace can have an impact on the interests of the employer and the need to balance the rights of employees to express their religious faith with the employer’s interest in maintaining a healthy work environment.

 

More specific questions include: What are the circumstances in which an employee can refuse to obey a lawful instruction because they don’t want to work on a Sunday or a Friday afternoon? What are the boundaries for conscientious objection? Do the refusal to officiate at a same-sex ‘marriage’ and the refusal to handle alcohol sales by a supermarket employee fall within those boundaries? What is the employer’s interest in such a conflict, and what is the employer’s ability to accommodate religious expression? When does religious expression become harassment? What is the distinction between speech that has animus and that which doesn’t?

 

The right of religious adherents to express their beliefs in the workplace throws up all manner of practical questions and the ‘answer’ is often heavily dependent on the circumstances. Hambler’s treatment of these many context-sensitive questions is thoughtful and sensitive.

 

The book presents a useful analytic framework to help group these varying and important issues. Employees’ rights can be divided into the following categories, Hambler suggests: (i) negative manifestation, such as the refusal to obey an instruction because of conscientious objection or Sabbath working, (ii) passive manifestation, such as wearing religious symbols or clothing, displaying symbols in the workplace or adopting particular styling (e.g. cornrow haircuts), and (iii) active manifestation, such as an employee engaging in evangelism, praying for a colleague, speaking on issues such as abortion or expressing disapproval of behaviour or lifestyles.

 

Categorisation does not necessarily simplify the questions. In fact, on occasion it throws the complexity and tension of many of these situations into sharp relief. Passive manifestation of religious expression, for example, might at first sight appear easier to accommodate, but recent experiences, such as the British Airways cross case, remind us that employers may claim that it would cause considerable difficulty in practice.

 

Whilst recognising the value of Hambler’s categories, especially in the context of ‘real-life’ situations that often prove to be minefields for analytic consideration, I must confess that I am not yet fully persuaded that the courts would always accept the distinctions between the categories or the suggestion that each demands the application of different standards.

 

As someone with extensive experience of cases involving Christians, I am sadly unsurprised to detect a theme of seeming prejudice in the courts against Christians, although Hambler makes a brave attempt to discover the logic in the various decisions. Such logic seems hard to find though – the infamous British Airways cross case, where the cross was proscribed but the turban and hijab allowed, being just one example.

 

Overall, Andrew Hambler’s book provides an admirably thorough and thoughtful consideration of the developing corpus of religious liberty case law in the UK. Its scope is impressive and its publication welcome, especially to a practitioner such as myself.


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