The CCMA has ruled against a Durban hospital pharmacist who applied to have a “bare elbows” policy declared discriminatory because it barred her from wearing full Islamic dress and practising her religion.
The hospital was bound by its “bare elbows” rule, meaning Farzana Ismail could not wear sleeves after being promoted from the dispensary to Clinical Practice Pharmacist (CPP), which involved interacting with patients in wards and ICU, it said.
Ismail, who has worked at Life Entabeni Hospital since 2011, had worn full Islamic dress including the jilbab, a scarf, and the niqab, before becoming a CPP, reports TimesLIVE.
However, when she took on her new role, she said she could not comply with the policy because she could not expose her arms from her elbows to her wrists.
After consultations, she was told that although the hospital respected her religious beliefs, infection prevention practices and protocols had to be maintained. Ismail referred a grievance to the Commission for Conciliation, Mediation and Arbitration (CCMA), claiming this was an infringement on her rights to practise her religion.
She wanted a ruling that this constituted unfair discrimination, that the hospital had caused her to suffer “great embarrassment and immense humiliation” and that there was no scientific basis for the policy.
She said she had proposed a “reasonable and amicable solution” – that she be allowed to wear disposable gloves over the sleeves of her dress, which she would change after seeing every patient – but this was rejected by management.
She said management had acted unreasonably in “reviewing her role” as a CPP for failing to comply with the policy and putting her back in the dispensary.
In her ruling, commissioner Hilda Grobler said the common cause facts were that the hospital’s uniform policy was specifically designed to accommodate the diversity of its employees, as far as possible.
While it allowed Islamic dress to be worn, it barred those working in a “clinical environment” from wearing the jilbab.
“In the event that an exception is made for Ismail – and the other Muslim employees – the annual costs of providing disposable sleeves would amount to some R53m, an exorbitant cost which would have to be passed on to the consumer,” said Grobler.
“In addition, all other religions and faiths, as well as cultural requirements, would have to be accommodated. A further issue to be considered would be the time required to change the sleeves … and the necessity for oversight.”
As a “compromise” Ismail was appointed as a pharmacist in the dispensary on the same terms and conditions of employment.
Grobler said while Ismail initially claimed this was a demotion, she had not persisted with this.
Evidence before Grobler was that Ismail, as a CPP, was required to see about 40 patients a day, mainly in the ICU, “attending at the bedside”.
If an exception were made for Ismail, this would open the door to others demanding special treatment and would “pose an infection risk”.
Joy Cleghorn, the hospital group’s risk control manager, had testified that the policy was informed by “science”, and was in line with global practices to stop the spread of drug resistant organisms in hospitals.
Ismail, however, claimed there was no scientific basis for the policy. She claimed she did not come into physical contact with patients.
While she conceded the other CPP at Entabeni Hospital was also a Muslim woman, and had complied with the policy, she claimed her colleague was “more liberal”.
Under cross examination, however, she conceded that a CPP was required to move from patient to patient in the ICU and general wards and was required to have physical contact with them.
Grobler said her witness, Professor Shaheen Mehtar, had also conceded that resistant bacteria in hospitals was far more dangerous than bacteria “we have on our bodies every day” and that not all bacteria could be decontaminated through washing hands.
Grobler said the evidence showed that there was both scientific and clinical justification for the policy – and that it was reasonable.
On the issue of unfair discrimination, Grobler said when the purpose of discrimination was essential and constituted an inherent requirement of the job, “it stands to reason that any impact is minimised, and more particularly so when it does not differentiate between employees”.
The hospital group employed about 322 people who observed the Muslim faith.
Grobler said the hospital group had provided conclusive evidence that the discrimination was justified, that Ismail’s claims that the “bare elbows” policy had no scientific basis were “without substance” and dismissed her claim that she was being unfairly discriminated against on religious grounds.
See more from MedicalBrief archives:
Muslim pharmacist takes Life Entabeni Hospital to CCMA over dress code
Balancing PPE-use obligations and workers’ religious objections
The importance to patients of what doctors wear — largest study