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employment | 23 Jul 2019
BY Lee Masuku
ENSight

employment


Can your employer tell you how to dress?

There have been recent media reports regarding a Muslim woman, a member of the South African National Defence Force (“SANDF”), who faces disciplinary action for refusing to remove her headscarf (hijab).  While we have not been apprised of the facts of this case and cannot comment on the outcome of any future  decision  in this regard, the matter does raise interesting issues relating to alleged discrimination on religious grounds in the workplace. .

In the employment context, a prohibition against unfair discrimination is set out in both section 187(1)(f) of the Labour Relations Act 1995 (“LRA”) and section 6 of the Employment Equity Act 55 of 1998 (“EEA”).  The LRA provision provides that discriminatory dismissals, being those based on listed or arbitrary grounds, are automatically unfair.  The EEA provision on the other hand prohibits discrimination contained in employment policies or practices, such as dress codes, on listed or arbitrary grounds.

In Dlamini & others v Green Four Security, the Labour Court was required to decide whether the dismissal of security guards for refusing to shave or trim their beards, which was prohibited by their Nazareth faith, was automatically unfair on the ground of religion.  Pillay J held in this matter that the security guards had not proved that the prohibition against beard-trimming was a central tenet of their religion; nor had they proved that they would suffer some significant penance if they broke the rule.  It was therefore held that the rule requiring the guards to be clean shaven was “an inherent requirement of the job” which was applied equally and consistently to all employees.  Accordingly, it was held that the security guards’ dismissal for refusing to shave  or trim their beards was neither discriminatory nor unfair.  It is arguable whether this judgment is correct having regard to subsequent decisions by the Labour Court and other higher courts.

In Ehlers v Bohler Uddeholm Africa (Pty) Ltd the court had to decide whether requiring an employee to wear male clothes was discriminatory.  This was in the circumstances where the employee, born a biological male, had indicated to her employer that she intended to undergo gender reassignment.  The employer indicated that it did not have a problem with her decision but requested that the employee wear male clothes when consulting with clients.  The employee initially agreed to do so but later provided the employer with a letter from her psychiatrist stating that she had to wear female clothing.  The employee’s relationship with her co-workers had strained as a result of her transition.  In discussions with the employee, the employer stated that it believed that as the employee had been employed as a male and was working in a male-dominated industry, her desire to work as a female was unacceptable to it and it had to protect its business interests.  Ultimately, the employee was retrenched by the employer as it had declared her position redundant.  She brought an unfair discrimination claim against the employer on the basis of gender and/or sex and/or sexual orientation.

Francis J was very critical of the employer, holding that the true reason for the employee’s dismissal was her gender reassignment.  It was further held that the fact that the employee was asked to hide that she was a transsexual was per se unfair discrimination and the fact that she had agreed to do so did not legitimise the discrimination she endured.  Having regard to the fact that, but for her gender reassignment the employee’s services would not have been terminated, the Labour Court held that the employee’s dismissal was automatically unfair.

In Department of Correctional Services and another v POPCRU and others, five correctional services officers who all wore dreadlocks for religious reasons were suspended and ultimately dismissed for their failure to comply with a written instruction to cut their dreadlocks.  The employees contended that they had been unfairly discriminated against on the basis of their religion, belief and/or culture.  The Labour Court held that the employees’ dismissals were automatically unfair and ordered, among other things, their reinstatement.  On appeal, the Department contended that the primary objective of the dress code was to achieve tidiness and uniformity in correctional officers’ appearance, with the secondary purpose of enhancing security, discipline and service delivery.  Ruling in favour of the employees, the Labour Appeal Court held that they had been discriminated against based on religion, culture and gender, stating that the Department was aware of the requirements of the principle of reasonable accommodation, yet opted for the imposition of a blanket prohibition, irrespective of the unfair impact upon the rights and dignity of the employees and its constitutional and statutory obligation to accommodate diversity.  The Department unsuccessfully appealed to the Supreme Court of Appeal.

The recent decision of Labour Appeal Court in TDF Network Africa (Pty) Ltd v Faris also illustrates two important points.  This case dealt with an employee who was dismissed for refusing to work on a Saturday because this was contrary to the tenets of her religion; she was a Seventh Day Adventist.  The employer argued that it was an inherent requirement of her job that she work on Saturdays. The Labour Appeal Court rejected this submission. It stated that that an inherent requirement of a job relates to an inescapable way of performing a job and does not involve mere commercial rationale.  Accordingly, the defence of an inherent requirement of a job must be strictly construed, in that the discrimination faced by an employee must fulfil a legitimate work-related purpose and must be reasonably necessary to accomplish that purpose. The court  also emphasised the duty to accommodate employees in this type of case. The employer must show that it is impossible to accommodate the employee without raising an insuperable operational difficulty. The court held that the employer had not done enough to reasonably accommodate the employee and accordingly, her dismissal was automatically unfair.

While the SANDF is excluded from the application of the LRA and the EEA, the possibility that the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”) could apply exists. Constitutional issues could also arise. The decision of the Constitutional Court in MEC for Education: Kwazulu-Natal and Others v Pillay is therefore of importance in this regard.  In this case, the Constitutional Court dealt with the right of a learner to wear a nose stud to school, worn for religious and cultural reasons, in light of a prohibition contained in her high school’s dress code.  The learner alleged that her high school had unfairly discriminated against her.

As this was not an employment matter, the prohibition against unfair discrimination was situated in PEPUDA  The Constitutional Court held that the high school’s rule prohibiting the wearing of jewellery had the potential for indirect discrimination because it allowed certain groups of learners to express their religious and cultural identity freely, while denying that right to others.  It was further highlighted that our Constitution requires the community to affirm and reasonably accommodate difference, not merely to tolerate it as a last resort.  The Court accepted that the high school had taken meaningful steps to accommodate diversity in its community and that uniforms and school rules served an important purpose in education.  However, there was no evidence before the Court to suggest that granting the learner an exemption from the dress code would endanger uniformity or school discipline in general.  Consequently, the high school’s failure to grant the learner an exemption from its dress code amounted to unfair discrimination.

While understandably, uniformity is of utmost importance in a military environment, the SANDF may want to glean from how our courts have dealt with discriminatory dress codes and practices to avoid the risk of being challenged on the implementation of its dress code. 

Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department.