Member Article

In Ismail v Life Entabeni Hospital, the Commission for Conciliation, Mediation and Arbitration (“CCMA”) had to decide whether an employee had been unfairly discriminated against on the basis of her religion as a result of the employer’s “bare below the elbow” policy (“BBE policy”) which did not permit the wearing of long sleeves by those employees working in general wards and the ICU. This policy arose from the employer’s obligation to prevent the risk of infection to its patients, staff, and visitors and to provide a sterile environment for all who access the hospital.

Issue

The employee was initially employed as a pharmacist at Life Entabeni Hospital. As a pharmacist, the BBE policy did not apply to her, and she was permitted to wear her full Islamic dress. When the employee was promoted to the Clinical Practice Pharmacist (“CPP”) position, she was required to perform clinical ward rounds in both the ICU and general wards of the hospital and was therefore required to comply with the BBE policy. As the precepts of her religion required that she not expose her arms from her wrists to her elbows, she requested that the employer permit her to wear full Islamic dress, despite working in the clinical environment.

During consultations on the matter, the employee proposed alternatives such as wearing an isolation gown or sleeves that could be changed between patients. The employer declined the employee’s request and her alternative proposals because they were contrary to its infection prevention principles. As the parties could not reach a compromise, the employer appointed the employee as a pharmacist without any change to her terms and conditions of employment and remuneration. She then referred an unfair discrimination dispute to the CCMA arguing that she had been unfairly discriminated against because of her religion in contravention of the Employment Equity Act, 1998 (“EEA”).

Evidence

During the arbitration, the employer presented evidence to show the BBE policy: that

• is scientifically justified;
• is based on several international studies, the recommendations in which are supported by organisations such as the World Health Organisation; and is in line with the global approach.

The employer argued that the implementation of the BBE policy is an operational requirement in all its hospitals and the same approach is followed by the Department of Health.

To support her case, the employee argued that she did not come into physical contact with the patients and that the alleged scientific basis for the BBE policy had been challenged by numerous researchers. The BBE policy therefore discriminated against her on religious grounds. The first two arguments were not put to the employer’s witnesses during cross examination. Furthermore, the employee and her own witness conceded during cross examination, when confronted with photographs of the employee physically attending to patients at the hospital, that she did come into physical contact with the patients. The employee’s witness also conceded that the BBE policy is justified in instances where a CPP comes into contact with patients.

Findings

The Commissioner applied the three-step test identified by the Constitutional Court when dealing with an alleged discrimination dispute. The first step is to establish whether the employer’s policy differentiates between people or categories of people. If it is shown that the employer does differentiate, the second step is to determine whether the differentiation constitutes discrimination, ie, that the differentiation is based on a ground prohibited by the EEA. If discrimination is proved, the third step involves determining whether the discrimination is unfair.

The EEA provides that discrimination is not unfair if the reason for the discrimination is the employer’s operational requirements. The Commissioner found that existing case law accepted that discrimination will not be considered unfair if it is capable of being justified having regard to the genuine and bona fide belief that it is needed to fulfil the legitimate work-related purposes of the job. The Commissioner concluded that:

• the employer’s BBE policy was reasonable and justifiable;
• the employer had demonstrated why the employee was required to comply with the BBE policy;
• the duties of a CPP required making personal contact with patients, and it was therefore an inherent requirement of the position that a CPP comply with the BBE policy;
• the employer’s uniform and BBE policy did not differentiate between people and therefore the second and third steps of the test for discrimination did not find application;
• if the employer were to accommodate the employee by allowing her to wear disposable sleeves, it would have to accommodate the other 322 employees who follow the Islamic faith, and that this would impose undue financial hardship on the employer and the public who would ultimately have to bear the costs. This would further pose an insurmountable operational difficulty for the employer;
• insofar as the employee alleged discrimination on a religious ground, the employer provided conclusive evidence that such discrimination was justified and therefore not unfair; and
• the employee’s claim of unfair discrimination on religious grounds failed.

Lessons

Because the employee alleged that she had been discriminated against on one of the grounds specifically listed in the EEA, the onus rested on the employer to prove that there had been no discrimination or that the discrimination was rational and not unfair or otherwise justifiable.

In this matter, the Commissioner found that there had been no differentiation and therefore no discrimination. This was on the basis that the BBE policy applied to all relevant staff. In coming to this decision, the Commissioner should perhaps have considered whether a case for indirect discrimination could not have been made.

Despite the finding that there was no differentiation and therefore no discrimination, the Commissioner also considered whether the employer had presented sufficient evidence to prove that, even if there had been differentiation linked to a listed ground, the discrimination was justifiable due to the inherent requirements of the job. After a detailed consideration of the evidence, the Commissioner found that this was the case.

The award illustrates that disputes in this regard will often be very fact-specific and the parties should be prepared to lead well-considered evidence in this regard. This decision also illustrates the important point that, although a single employee may have referred a dispute to the CCMA, an award may have consequences that extend beyond the impact of the award on that employee. If the employee had been successful in her case, there may have been a number of other employees who could make similar arguments.

In addition, the proposed amendments to the EEA, anticipated to come into effect in September 2023, state that an award made against an employer in respect of an alleged unfair discrimination dispute will be taken into consideration when it is being considered whether a compliance certificate should be issued. This makes proper preparation for the case, and a proper presentation of a case at arbitration, even more important.

Suemeya Hanif
Executive Employment

[email protected]

Kerry-Anne Do Couto
Associate Employment

[email protected]

 

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