For example, if the employee previously had a different vaccination (for example, a yellow fever vaccine for travelling) and now refuses the Covid-19 vaccination because of an alleged religious objection, then it would be reasonable to conclude that the belief is not sincerely held. Where an employee’s prior conduct contradicts the request for accommodation this too would be relevant to consider. In this regard, the employer can require proof of past conduct in support of the employee’s religious practice. In assessing a request for a religious exemption, an employer can consider a range of factors, including evidence that speaks to whether the employee is part of a recognised religious group the objective centrality of the practice to the religious community in question and, importantly, whether the employee regards the practice as central to her/his religious identity. The Court explained that in this assessment evidence of the objective centrality of the practice to the religious community at large would be relevant, but only in so far as it helps answer the primary enquiry, namely whether the employee regards the particular practice as central to her/his religious identity.Ī roadmap for the way forward: What must an employer consider? These principles were applied in the employment context in the case of TDF Network Africa (Pty) Ltd v Deidre Beverly Faris JOL 40638 (LAC). The Labour Appeal Court reiterated that even where individuals who belong to a particular religion are not obliged to observe a certain practice, they would still be protected where they feel that the particular practice is central to their religious identity.
The question is how central the belief is to the individual’s religious identity. Further, in Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) the Court confirmed that it should not be concerned with questions of whether, as a matter of religious doctrine, a particular practice is central to the religion. The first is MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (2) BCLR 99 (CC) where the Constitutional Court held that in order to determine if a practice or belief qualifies as religious, a court should ask only whether the claimant professes a sincere belief. There are two seminal Constitutional Court cases.
Where an employee objects to the vaccination requirement on religious grounds, employers must take note of the principles that have been developed by our courts when it comes to alleged unfair discrimination on the basis of religious beliefs. This too is not an absolute obligation and would not apply where the effort and cost involved in accommodating the employees results in unjustifiable hardship. The constitutional rights that come into play are the right to bodily integrity and the right to religion, conscience or belief. This might be the case with front-line staff members who interact with members of the public, or those who have close contact with fellow workers.Īn employer will then have a further legal obligation to reasonably accommodate employees refusing to be vaccinated on medical or constitutional grounds. those over 60 and those with underlying co-morbidities) and those who, through their work, are at a higher risk of transmission of the virus. Employers who decide to implement mandatory vaccination policies must do so if it is necessary to ensure the health and safety of their employees and people with whom they interact.Īccordingly, the employer is required to conduct a risk assessment and identify those categories of employees who are regarded as vulnerable (i.e.