The Swedish labour court has awarded a Muslim woman compensation after she was discriminated against in a job interview for refusing to shake hands on religious grounds.
Farah Alhajeh, 24, was interviewing for a job as an interpreter at a language services company when she declined to shake hands with a male interviewer for religious reasons. Instead, Ms Alhajeh greeted the man by placing her hand on her heart and explained she avoided physical contact with members of the opposite sex as she was a Muslim. The interview was abruptly ended and she was asked to leave.
Ms Alhajeh raised a complaint with Sweden’s equality ombudsman which encouraged her to bring a claim of discrimination in Sweden’s labour court with their support.
She explained to the court that she observes an interpretation of Islam that prohibits handshaking with the opposite sex unless it is a close member of the family. The company had argued that it required its staff to treat men and women equally and could not hire someone who would react differently to men and women who offered a handshake as a greeting.
Ms Alhajeh, however, had said that she tried to avoid upsetting anyone by placing her hand over her heart and smiling when greeting both men and women.
The court ruled in favour of Ms Alhajeh and found that, whilst the company was correct in requiring men and women to be treated equally, including how they greet others, it could not demand that the greeting be in the form of a handshake only. The court found that Ms Alhajeh’s right was protected by the European Convention on Human Rights and the company policy (of demanding greetings take the form of a handshake) was detrimental to some Muslims.
Whilst not binding, the case does serve as an important reminder of anti-discrimination laws in the U.K
The duty on employers not to discriminate on the grounds of religion is enshrined in The Equality Act 2010. It is important to note that, as in Sweden, the duty on employers not to discriminate does not only apply to employees but also includes job applicants and potential job applicants too.
Considering the recruitment process, employers should be careful that the arrangements which they make for deciding whom to offer employment and the terms of the appointment do not amount to discriminatory treatment. Arrangements for deciding whom to offer employment is likely to include job advertisements, the format and content of application forms and the location and timing of interviews. Discriminatory terms of employment may, for example, include a stipulation that the role is performed full time or a requirement that duties are performed on a Sunday. With this in mind, it is advisable that employers implement a thorough recruitment policy and in particular take great care when drafting job advertisements or job specifications to avoid discrimination at all stages of the process.
Furthermore, Ms Alhajeh’s case highlights the nuanced and often misunderstood concept of indirect discrimination.
Indirect discrimination occurs when an employer applies a “provision, criterion or practice” (PCP) in the workplace. The PCP will ordinarily apply to all employees and is not usually intended to be discriminatory. However, where the PCP has the effect of disadvantaging a particular group of people with a protected characteristic compared to those who do not, the PCP may be discriminatory unless the employer can show that it is a proportionate means of achieving a legitimate aim. In this instance, the policy of requiring staff to greet others with a handshake proved discriminatory to Muslims.
The difficulty for employers is that it may not always be clear that discrimination is arising as the result of a PCP. Employers therefore are best advised to “equality check” any new rules or polices which they introduce into the business and consider how they may adversely affect different protected groups.
A PCP may not always obvious and may include informal working practices, written policies and exercises of company/ management discretion (even if only done on a one off basis). Further, employers should be aware that line managers may introduce new PCPs without appreciating their possible impact. Sensible employers should therefore review policies on a continual and ongoing basis and actively train management in avoiding discrimination in the workplace.
If an employee raises an issue with a PCP, employers should be prepared to immediately review the policy in light of their complaint and, if appropriate, offer a compromise. Engaging with employees and prospective employees will not only mitigate the possibility of tribunal proceedings in the future but will also create an inclusive and cooperative workplace culture. Reviewing any PCP’s with an open mind can avoid a lot of future difficulties.
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