The internet is riddled with articles detailing the importance of a good handshake, but just how vital is it for the proper performance of your duties at work? A Swedish, Muslim, woman has been awarded compensation after her job interview for a role as an interpreter was terminated when, due to religious grounds she would not shake hands with her potential employer.
When the male interviewer extended his hand in greeting as is traditional in Europe, Farah Alhajeh, 24, instead placed her hand over her heart. The response was her way of greeting the interviewer in a way that also aligned with her religious beliefs.
Some Muslims avoid physical contact with members of the opposite sex (except for in cases of emergency, or when there is a ‘special relationship’ present – i.e. the individual in question is their partner or a blood relative). This is why Ms Alhajeh offered an alternate greeting – there was no such special relationship between Ms Alhajeh and her interviewer, so she placed her hand on her heart, as is commonly done by those who share the same belief.
In handing down the judgement, the Swedish Labour Court (similar to the Employment Tribunal in the United Kingdom), had to balance the employer’s interest with the individual’s right to bodily integrity and the importance for the state to maintain protection for religious freedom.
The company’s main argument hinged on the fact that it was an established workplace policy that men and women were to be treated equally, and as such they could not allow a staff member to refuse a handshake based on gender. The Court found that the policy of equality between genders was justified – but that demanding the greeting be in handshake form only was not. The Court also heard that Ms Alhajeh had placed her hand over her heart when greeting both men and women in the workplace to avoid causing offence.
The Court stated that Ms Alhajeh’s approach to greetings would not limit her effectiveness as an interpreter. It also stated that the company’s policy in demanding a specific greeting was detrimental to Muslims and that her refusal to shake hands was in fact protected by the European Convention on Human Rights.
In this case, the Court found that the company had discriminated against Ms Alhajeh, and ordered that they pay 40,000 kroner (approximately £3,420) to her in compensation.
Interesting to note however is that Sweden’s Swiss neighbours have taken a different approach in a case with similar principles but different facts. The city of Lausanne has this month determined that a Muslim couple did not meet the criteria for Swiss citizenship on the basis that their refusal to shake hands indicated a lack of willingness to integrate into Swiss society.
What would the outcome have been here in the UK if a job applicant like Ms Alhajeh brought a similar claim? It is unlawful to discriminate against an individual on the grounds of religion and belief under the Equality Act 2010, and this protection extends to cover potential employers in the recruitment process as well as current employees.
Importantly with a discrimination claim a claimant need only prove facts from which a Tribunal could conclude (in the absence of an adequate explanation) that the employer has acted in an unlawful manner. The burden of proof then shifts to the employer to show that no unlawful act has taken place. If they cannot show this then the Tribunal will uphold the complaint.
If a similar case were to be heard here in the United Kingdom the employee would stand a good chance of clearing that first hurdle and on the facts it seems hard to see how an employer could justify terminating the interview at the outset. A mandatory hand-shaking policy would more than likely be shown to be indirect discrimination against muslims who wish to behave modestly, as it puts them at a disadvantage compared to their non-muslim colleagues. Such a policy could only be safely put in place if the employer could show that it was a proportionate means of achieving a legitimate aim. There are very few, (if any) roles in which shaking hands could be considered an occupational requirement, therefore a similar claim in the UK could have good prospects of success, however each claim will be determined on its own facts. Interestingly, the case of Ms Alhajeh above divided the judges in terms of opinion with three voting in support of her claim and two voting against.
ACAS have published a useful guide for both employees and employers on Religion or Belief in the Workplace which can be found here.