Discrimination on religious grounds based on requirements of the job is fair, CCMA rules

In Ismail v Life Entabeni Hospital, the Commission for Conciliation, Mediation and Arbitration (CCMA) had to decide whether an employee of the Durban hospital had been unfairly discriminated against on the basis of her religion as a result of the employer’s “bare below the elbow” policy (BBE) 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.

The employee, Farzana Ismail, 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 Ismail 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, Ismail proposed alternatives such as wearing an isolation gown or sleeves that could be changed between patients. The employer declined her 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 Ismail 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).

During the arbitration, the employer presented evidence to show that the BBE policy is scientifically justified; is based on several international studies, the recommendations in which are supported by organisations such as the World Health Organization; 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, Ismail 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, Ismail and her own witness conceded during cross-examination, when confronted with photographs of her physically attending to patients at the hospital, that she did come into physical contact with the patients.

Ismail’s witness also conceded that the BBE policy is justified in instances where a CPP comes into contact with patients.

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 proven, the third step involves determining whether the discrimination is unfair.

• 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 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.