European Court of Human Rights Says Dismissal of HIV-positive Employee is Incompatible with the Convention

by | Oct 29, 2013

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About Menelaos Markakis

Menelaos Markakis is reading for a DPhil at the University of Oxford and is an Academy of Athens and Modern Law Review scholar.

In the case of I.B. v. Greece, the European Court of Human Rights held that the dismissal of an HIV-positive employee due to pressure exercised by his fellow employees on the employer to dismiss him was incompatible with the European Convention on Human Rights.

The applicant was working for a jewellery manufacturer. He confessed to three of his fellow employees his fear that he might have contracted HIV. The three employees sent a letter to their employer stating that the applicant ‘had AIDS’ and requesting that he be dismissed. Meanwhile, word spread around the workplace about the applicant’s health status, leading to other employees requesting that the HIV-positive employee be dismissed. In an effort to calm tensions, the employer invited a doctor to talk to the company’s employees about the modes of transmission of the infection and precautions that could be taken to minimise the risk of transfer. However, the company’s workers continued to request that the employer fire the applicant. Eventually, the employer sought to transfer the HIV-positive employee to another department of the company. However, this prompted the head of that department to threaten to resign.  Consequentially, the employer asked the HIV-positive employee to quit his job. She subsequently sought to help him start his own profession by financing his vocational training as a hairdresser.

The HIV-positive employee commenced legal action against his now former employer. Relying on Greek civil law, he won the case in the lower courts but the Court of Cassation ruled in favour of the employer. Noting the ‘contagious’ nature of the disease which had led the company’s employees to ask their boss to dismiss the applicant, the Court of Cassation held that the dismissal was ‘fully justified’ by the interests of the employer, in that she sought to re-establish a peaceful situation within her business enterprise to ensure its good functioning.

The applicant took his case to the European Court of Human Rights, relying on Article 8 of the Convention (right to private life) in conjunction with Article 14 (prohibition of discrimination). The ECtHR noted that there was no risk of infection and the reactions of the applicant’s co-workers were not justified from a scientific point of view. Moreover, the applicant’s medical condition did not impact upon his job performance and the continuing operation of the company was not threatened by the reactions of his fellow employees (paras. 86-87). In the ECtHR’s view, the Court of Cassation had not adequately sought to strike a balance between the interests of the employer and the interests of the applicant in a manner compatible with the Convention (para. 90) and therefore concluded that there had been a violation of Articles 8 and 14 of the Convention. In its reasons it also highlighted that the Court of Cassation had based its judgment on a ‘manifestly inaccurate premise’, i.e. on the allegedly ‘contagious’ character of the applicant’s illness (para. 88). The ECtHR also emphasises the expressive harm that arose in this case.  Although the Greek Government sought to argue that a judgment to the contrary would have made no practical difference in the circumstances of the case, in that the applicant would still have to face a hostile working environment if rehired, the Court noted that ‘we cannot speculate on what the attitude of the company’s employees could have been, had the Court of Cassation upheld the judgments of the lower courts and, what is more, had a statute or a well-established body of case-law protective of HIV-positive persons in the workplace existed in Greece’, thereby highlighting the potential expressive value of a judgment to the contrary (para. 89).

There are two points which are of particular importance here. First, the European Court of Human Rights did not hold that every dismissal of an HIV-positive employee because of his health status would have been incompatible with the Convention. One could suggest that, had the performance of the employee deteriorated substantively or had there been a serious risk of contagion, the dismissal may have been compatible with the Convention. However, even in such cases, the national courts should be required to justify why the interests of the employer should take precedence over those of the employee. Secondly, the assumption on which the Court’s conclusion is premised is that prejudices and popular misconceptions cannot serve as an adequate justification to a discriminatory treatment. The Convention standards should therefore be upheld by the courts regardless of public opinion or the economic concerns of businesses.

Menelaos Markakis is a DPhil student at the University of Oxford and a frequent contributor to the Oxford Human Rights Hub Blog.

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