Can an employer prohibit the wearing of any religious, political, or any another form of dress in an effort to remain neutral when dealing with clients and customers?
Broadly, this is unlikely to pass muster with the country’s courts, says Fiona Leppan, director in the Employment Law practice at Cliffe Dekker Hofmeyr.
“Our courts have said that differentiation should not be based on exclusion, stigma or marginalisation. They actually steer away from absolute neutrality. You could have a situation in an employment context where an employer has to impose an outright rule such as no jewellery or no loose clothing.”
However, Leppan said that in order to introduce these rules there would have to be an inherent requirement of the job that warrants them.
She pointed to the Occupational Health and Safety Act which specifies no loose clothing, loose hair, jewellery or earrings when dealing with heavy machinery. This is because if you are working with moving machinery, and these items get caught, you could harm yourself or others.
“That’s a very good justification – it is objective, applies to all and it has a rational reason why it exists. While it is a fairly extreme example, it gives you the sort of justification necessary to support such a rule.”
Where a dispute arises, Leppan said that an employee can refer the issue to statutory bodies such as the Commission for Conciliation, Mediation and Arbitration (CCMA), as well as national bargaining councils.
“Where they are unsuccessful in resolving the dispute with the employer, that is likely to be referred to the Labour Court which would then have to adjudicate the matter, with particular reference to our Constitutional framework, but more importantly the Employment Equity Act as well.
Absent an inherent requirement for the job – it will be a difficult case for the employer to fight past, she said.
“Importantly, if employees were to raise religious or cultural norms that they are relying on, and is the subject of them being discriminated against, they must be able to show that the cultural or religious belief they hold is genuine.”
Leppan pointed to a case where an employee, who was employed as a security guard, said that they belonged to the Nazareth faith which did not shave as part of their religion. However, the security company required personnel to be smartly dressed and clean-shaven as part of their professional duties.
The employee had to bring forth expert evidence showing that they must remain unshaven as part of this faith. However, the expert who presented had no source for this rule. In addition, there appeared to be selective rule-following as Nazreth-follower are not supposed to work on a Sunday, but many of the security guards did because they wanted overtime pay.
In this case, the issue was ultimately decided in favour of the employer