Since the commencement of the Employment Equality (Religion or Belief) Regulations 2003 there has been general protection against religious discrimination in the workplace in England and Wales, with an enforceable remedy in the employment tribunal. The law is now found principally in the Equality Act 2010, although readers will recall the significant Strasbourg judgment in Eweida and Others v United Kingdom [2013] ECtHR 37, handed down on 13 January 2013, redefining the approach needed to ensure that domestic law was compliant with Article 9 of the European Convention on Human Rights. Much has been written on religious discrimination generally, and (for example) Lucy Vickers expressed concern in this journal as long ago as 2010 that the courts sometimes appear to give less protection to religious rights than to other protected characteristics.Footnote ³

This theme has been picked up in comment on the impact of Eweida; while welcoming the general widening of protection for religious expression in the workplace, various writers have also drawn attention to the lack of protection afforded to Ms Ladele, one of the four Christian applicants considered by the Strasbourg court, and to a need for changes in the law to reconcile the approaches under EU and Strasbourg jurisprudence. There are plainly inherent tensions in the law, especially when privileges desired by one protected group impact upon another group, or upon the employer's ability to run their organisation effectively. One person's freedom of religious expression may be another person's harassment, for example, and religiously observant employees may be claimants or respondents in discrimination litigation. It is therefore helpful if an understanding of the reality of workplace practices and of litigation can be reflected in academic analyses of the legal context of religious expression in the workplace.

Andrew Hambler's book considers the definition and underlying motives of religious expression, going on to explore its impact in the workplace, how far freedom of religious expression for the individual enjoys legal protection (in England and Wales) and whether there is a case for changing the law to strengthen that protection. Hambler does so in nine chapters, structured in a clear and logical way. The introduction highlights the issues facing those who wish to manifest their religious belief and then sets out a theoretical framework. The author first identifies three forms of religious expression, or ‘manifestation’, most likely to engage the law: these are ‘negative manifestation’ (the desire to opt out of particular aspects of a job role), ‘passive manifestation’ (the desire to display religious conviction visually through dress or personal grooming) and ‘active manifestation’ (the desire to articulate religious convictions to make an impact upon others). The second part of the theoretical framework identifies models for six different principled responses in a liberal society, ranging from the ‘exclusion’ to the ‘protection’ models. These are: the ‘exclusion model’, with the aim of suppressing religious expression; support for a majority religion; laissez-faire (to allow the employer to respond); protection within ‘islands of exclusivity’; protection (where religious expression is actively supported by laws); and protection for minority religions. This approach is analysed in some detail in the subsequent chapters, which also examine the European Convention on Human Rights and domestic legislation and policy, and set out detailed conclusions.

Hambler suggests that the picture of legal protection is somewhat contradictory and fails fully to recognise that religious expression is of primary significance to many individuals. He argues that insufficient weight is given by employers, courts and tribunals to religion, compared to other protected characteristics such as sexual orientation. He considers that the legal model generally adopted in England and Wales does not generally favour the ‘majority’ religion of Christianity, that the principle of forming ‘islands of exclusivity’ for religious workers has been largely rejected and that employers’ freedom of action has been reduced over time. He suggests that the model of ‘protection for minority religions’ is to some extent influential, but he concentrates on ‘protection’ and ‘exclusion’, suggesting that the legislation contains elements of both. He argues that tensions in conflicting rights between these models, and confusion over the role and value of religious expression, result from three competing understandings of the nature of religious manifestation. These are whether religious manifestation is a private matter only, whether it is ‘core’ to religious identity and whether it is a matter of obligation or choice. Hambler's conclusions essentially encourage a broader approach to permitting religious expression in the workplace and argue for a further move towards the ‘protection’ model.

Hambler identifies and assesses three options which he proposes should be given consideration. First, he considers statutory exemptions or ‘conscience clauses’ and suggests that greater use might be made of these, although very careful drafting would be required. Second, he raises the possibility of introducing a ‘duty of reasonable accommodation’ analogous to the duty to make reasonable adjustments for disabled employees, albeit with caveats. Finally, he suggests amendments to the law of indirect discrimination and harassment. In the case of indirect discrimination, the main suggestion is that courts and tribunals should be encouraged to rebalance the ‘proportionality equation’ to give more weight to religious claims, either through judicial training or through legislative amendment by changing the employer's ‘proportionality’ defence to one of ‘necessity’. Space does not permit an exploration of that proposal in this review but, although it arguably has some merit, there may very well be practical difficulties and it may not deal sufficiently with the issue of conflicting rights. Others may well take up the baton and further analyse these proposals. Hambler also suggests that the law of harassment fails to protect legitimate religious speech, proposing a separate definition of harassment as a result of religious speech. Again, there are likely to be practical difficulties in such a change. Finally, he suggests public policy changes, such as more support for religious causes by the Equalities and Human Rights Commission.

This is Hambler's first book, and is also the first in Routledge's ‘Law and Religion’ series, edited by Professor Norman Doe. It amounts to a thoughtful analysis of the inherent tensions in the way that religious expression manifests itself in the workplace, and certainly highlights how the law may not always provide the remedy which individuals seek. It is a worthy start to the series and has succeeded in providing an intellectually coherent framework for analysing the practicalities of religious expression and legal protection. Overall, while I found the proposals for reform somewhat debatable, Hambler is on surer ground in identifying the issues and the need for the core liberal values of equality, dignity and personal autonomy to be reflected in the legal approach to protection. Whether or not one necessarily agrees with all the conclusions, the book provides a useful contribution to a theoretical understanding of this important topic, with the laudable secondary aim of facilitating practical solutions. I would recommend it to all those interested in the subject.