There has been much talk about recent amendments to nursing dress codes, after the National Department of Health circulated an amended dress code that includes a ban on headscarves for nurses on duty and regulation of the length of nurses’ facial hair.
The proposed amendments are not, at this stage, publicly available and we have not considered them, write Lisa Kriegler and Zaid Majiet, Associates of Norton Rose Fulbright SA.
We have, however, considered the dress codes that have been in force for more than 50 years under the Regulations regarding the distinguishing devices and uniforms for registered nurses and midwives and registered student nurses and student midwives, 1970, which already discriminate between different categories of nurses in two important ways.
First, the regulations state that nurses must wear a plain-coloured uniform, and that “in the case of women, the skirt must be at least knee length”, and that “in the case of men, long or short trousers may be worn” (knees are not mentioned).
Second, the regulations require different categories and levels of nurses to display different epaulettes. General nurses must wear dull cherry epaulettes and midwives, green epaulettes, for example. Nurses with additional qualifications must add different coloured bands to their epaulettes.
The first requirement discriminates between nurses based on their sex and gender, and the second, based on the category and level of training of each nurse.
But is it unfair discrimination?
The Employment Equity Act aims to promote equal opportunity and fair treatment in the workplace through the elimination of unfair discrimination. The Act prohibits direct and indirect unfair discrimination against an employee on prohibited grounds. These grounds include sex, gender and religion.
The Promotion of Equality and Prevention of Unfair Discrimination Act defines discrimination to include anything that imposes burdens, obligations, or disadvantages on any person on a prohibited ground.
The Employment Equity Act states that it is unfair discrimination to require different employees performing the same work to comply with different terms and conditions of employment based on a prohibited ground. It does, however, allow employers to discriminate against employees if that discrimination is fair, in that it relates to an inherent requirement of the job.
The Act states that whenever unfair discrimination is alleged, it is the employer who must establish that the discrimination is, in fact, fair.
Requiring women to wear skirts and men to wear pants amounts to direct unfair discrimination on the grounds of sex and gender, and it cannot be justified as an inherent requirement of the job.
Discriminating against different employees based on their skills and qualifications by requiring nurses with different levels of training to wear different epaulettes is, however, not unfair discrimination.
This requirement does not discriminate against employees on a prohibited ground but instead flows from the inherent requirements of being a nurse – different types of nurses, and nurses with different levels of training, must be easily identifiable to do their jobs properly. The differentiation between these nurses is therefore justified.
If the National Department of Health has indeed sought to amend the nursing dress codes to regulate headscarves and facial hair, would this amount to unlawful discrimination, as in the first example, or justified differentiation, as in the second example?
Employers are prohibited from discriminating against employees on the basis of their religious beliefs. While the proposed amendments do not explicitly state that Muslim women are not allowed to wear headscarves, or that Muslim men may not have long facial hair, these prohibitions amount to indirect discrimination as they exclude members of a particular religious group.
Although no nurses may wear headscarves while on duty, mostly female Muslim nurses will feel the effects of the prohibition.
To implement an amendment to the regulations that indirectly and unfairly discriminates against nurses on the ground of religion, the NDoH would have to establish that that discrimination is fair in light of the inherent requirements of the nursing profession. In other words, it would have to show that while the dress code does discriminate against Muslim people, that discrimination is required for nurses to perform their jobs properly.
Our courts have applied this requirement strictly and have stated that one needs to look at what is reasonably necessary to the normal operation of the profession, the need for good sense and consistency, as well as the inherent requirements of the job as applied to the circumstances of each case.
Various Islamic organisations have objected to the proposed amendments on the basis that there is no empirical evidence that headscarves or facial hair present any risk to patients.
The Department of Health would therefore be required to prove that, for example, the risk of cross-contamination between patients is increased by wearing a headscarf or by having a particular length of facial hair, to establish that while the dress code is discriminatory, this is reasonably necessary for nurses to do their jobs properly, and therefore fair.
See more from MedicalBrief archives:
Nurses’ headscarves ban slated for January 2024
Muslim groups challenge nurse dress code policy
CCMA rules against Muslim pharmacist in hospital dress code challenge