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HIV is No Justification for Employee Dismissal

Wednesday, 15 January 2014

The European Court of Human Rights (ECHR) recently made its first ruling on HIV-related employment discrimination. It found that an employee’s dismissal on the basis that he was HIV positive was a violation of Article 8, the right to respect for private and family life, and Article 14, the prohibition on discrimination, of the European Convention on Human Rights.

The applicant was dismissed by his employer after it had come under pressure from other employees to remove him due to his condition.

Background to I.B. v Greece [2013]

The applicant was a Greek national based in Athens who had been employed by a jewellery manufacturer since 2001. In 2005 he indicated to three colleagues that he may be HIV positive, a suspicion which was confirmed shortly afterwards by a test.

As news of the man’s condition spread through the company of around 70 employees, the director came under pressure from the other employees to dismiss him to “preserve their health and their right to work”. Attempts by an occupational health doctor to reassure staff failed and the employee was dismissed soon after with the compensation required under Greek employment law.

The man found new employment shortly following his dismissal and brought proceedings in the Athens Court of First Instance against his old employer.

Outcome of the Greek Court Proceedings

The lower Greek court concluded that the employer’s actions were a misuse of its powers, having mistaken the issue as one of maintaining peaceful employee relations, and that the dismissal was therefore illegal. It also refused to reinstate the applicant’s job due to his new employment.

Both parties appealed but the appeal court upheld the judgement of the lower court on both counts. It also noted that the fears of the other employees were unfounded and that the employee’s condition had no effect on the functioning of the company and was unlikely to do so in the future.

On a further appeal to the Court of Cessation, the judgements of the lower courts were overturned on the basis that the dismissal was not wrongful where it was justified by the employer’s interests such as harmonious employee relations and smooth functioning of the company.

The European Court of Human Rights (ECHR)

The European Court of Human Rights relied upon case-law to define discrimination as treating differently, without an objective and reasonable justification, people in similar situations. On that assessment it was clear that the man had been treated less favourably than another employee would have been, due to the fact he was HIV-positive.

The ruling makes it clear that dismissal from employment must be made on an objectively justifiable basis and that anything else, such as scientifically unfounded fears held by other employees, will be discrimination.

For more information about this case or other employment matters, please contact Aneil Balgobin via e-mail or by telephone on 0207 611 4848.