A clinical practice pharmacist employed by a private hospital group brought a claim of unfair discrimination before the CCMA due to the hospital’s “bare below the elbow” infection-control policy. She expressed that this policy infringed on her right to cover her arms as dictated by her religious beliefs. The respondent successfully proved that the policy in place was necessary and not arbitrary or unfairly discriminatory, and the application was dismissed.

Ismail v Life Entabeni Hospital (KNDB1441-21) [2022] ZACCMA 2 (9 September 2022)

Case Summary

The applicant in this case is a pharmacist who was able to wear full Islamic dress while being employed in a hospital dispensary. When she began to work as a clinical practice pharmacist, though, she was required to adhere to the company’s “bare below the elbow” policy, which is in place to enable infection-control measures, such as hand washing and alcohol disinfection in between visiting ICU patients. This was experienced by the applicant as an intense humiliation, and an infringement upon her right to practice her religion.

The applicant raised the issue in consultation, seeking a solution that would enable her to continue working in her chosen field of specialisation while still keeping her arms covered, such as wearing an isolation gown and plastic sleeves, which can be changed in between patients.

When an agreement could not be reached, the applicant referred a case of unfair discrimination to the CCMA, seeking compensation for the embarrassment she had faced, as well as the right to practice in her chosen role while adhering to her religious beliefs.

During the hearing, an expert witness for the applicant put forth that because she does not move in among the beds in the ICU ward or touch patients, it should be acceptable for the applicant to wear long sleeves. This assertion fell flat when it was shown by the respondent that clinical pharmacists do in fact move in among beds and touch patients on a regular basis.

The respondent explained that a clinical pharmacist is part of a multi-disciplinary team, which includes radiographers, dieticians and the like. As such, they see upwards of 40 patients per day, at their bedside in the ICU or the wards. The estimated cost for the respondent company employing an estimated 322 workers who may want to cover their arms for religious reasons, and wear disposable plastic sleeves and change them in between seeing patients would be approximately R53-million per year. This system would also require oversight, and the plastic sleeves would have to be disposed of as contaminated medical waste at an additional cost to the company.

The respondent made it clear that they are not against anyone practising their religion in the workplace, but that their uniform standards and infection-prevention protocols had already been carefully put in place to protect patients while not discriminating unnecessarily against anyone for any reason. It was understood by both sides that drug-resistant infections are a serious problem in the hospital setting. It was also not in dispute that the applicant had signed the documents explaining the applicable protocols (including the “bare below the elbow” policy) in detail, and that she was well aware of the policy before starting to practice.

The arbitrator reasoned that if the respondent were to be required to accommodate this request, many other religious and cultural groups would also need to be accommodated to avoid unfair discrimination against them. The cost involved would amount to “undue hardship” and an “insurmountable hurdle” for the company.

For all the reasons discussed at the hearing, the arbitrator found that any discrimination against the applicant on a religious ground had been satisfactorily proven by the respondent to be justified and, therefore, not unfair.

It was found that the applicant’s claim that the “bare below the elbow” policy was unscientific, unreasonable or unjustified was without substance, and the application was dismissed.

Written by Labour Guide