A Swedish Muslim woman has won an indirect discrimination claim after her job interview was ended when she refused a handshake due to her religion.
Farah Alhajeh was interviewed for a position as a translator with language services firm Semantix in May 2016. The person conducting the interview offered to introduce her to a male boss. Ms Alhajeh politely refused the handshake that was offered at the introduction and instead her hand on her heart as a greeting, while explaining that her religion stipulated she should avoid physical contact. Ms Alhajeh explained that she adheres to an interpretation of Islam that prohibits physical contact with the opposite sex unless it is a close member of the family. She claimed her interview was abruptly cut short and she was shown to the lifts where she left the building upset.
She told the court that when she tried to discuss the issue with Semantix employees she was told the fear of bacteria might be a reason to refuse a handshake but not her faith. Semantix argued that its staff were required to treat men and women equally and could not allow a staff member to refuse a handshake based on gender.
Ms Alhajeh brought claims for indirect discrimination.
The Swedish labour court upheld Ms Alhajeh’s claim. It ruled that Semantix should pay her 40,000 krona (£3,420) in compensation.
The court concluded that “the woman’s refusal to shake hands with people of the opposite sex is a religious manifestation that is protected under Article 9 of the European Convention on Human Rights.” It said that the company’s requirement to have a specific form of greeting was detrimental to Muslims.
The court accepted that the company was right to require employees to treat men and women equally, including greetings, but not that the greeting should involve shaking hands.
This case demonstrates how employers can get into hot water in relation to discrimination claims even if the claimant is not yet employed. It also highlights that indirect discrimination claims will succeed if the company is shown to have disadvantaged a group of people sharing a protected characteristic by applying an apparently neutral provision, criterion or practice (“PCP”).
A claimant bringing an indirect discrimination claim will need to show that there is a PCP, which causes disadvantage to a group, and that there is a connection between the PCP and the group disadvantage. Finally the claimant must show that they have suffered a disadvantage. If the Claimant can satisfy these elements, it is still open for an employer to show that any PCP was a proportionate means of achieving a legitimate aim.
Usually, employers only realise that a PCP could be discriminatory when they receive a claim. Although it can be difficult to cover all bases, as a starting point employers should ensure that they have sound and legitimate business reasons for any PCP’s and that any disadvantage caused to a particular group is proportionate. In other words, there isn’t a better way of achieving the same thing!
If you have any queries relating to discrimination or any other employment law or HR query please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.