Introduction

In Emmanuel Ejiogu Onuhikemi v Smridu Nigeria Limited,(1) the National Industrial Court considered whether the cessation of an employment contract after the employee had tested positive for HIV/AIDS could be regarded as workplace discrimination. Applying international best practices – particularly the International Labour Organisation (ILO) Discrimination (Employment and Occupation) Convention 111, the Lagos State Protection of Persons Living with HIV and Affected by AIDS Law 2007 and the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act (Cap A9 LFN 2004) – the court held that an employee has the right to:

  • privacy and confidentiality regarding his or her HIV/AIDS status; and
  • freedom from discrimination on the ground of said status.

Facts

The applicant had been an employee in the respondent company's (Smridu Nigeria Limited's) catering department. In the pleadings filed with the court, the parties agreed that the applicant had been subjected to frequent medical tests during employment and that, in the course of one such test, he had tested positive for HIV/AIDS. The applicant claimed that after he had tested positive for HIV/AIDS, his line manager had told him to "go home and take care of himself" and that he would be contacted in due course. According to the applicant, he was never contacted again and thus considered that his employment had been constructively terminated.

The respondent stated that although the applicant had been subjected to various medical tests, such tests had been conducted with his consent. The respondent stated that it had a workplace HIV/AIDS policy and that when the applicant had tested positive to HIV/AIDS, it had activated that policy and referred the applicant to its retained hospital for medical attention. It also claimed that the applicant had been redeployed to another department with flexible working hours. The respondent denied that the applicant had been discriminated against or that his employment had been constructively terminated due to his HIV/AIDS status. Rather, the respondent claimed that the applicant had refused to come to work on his own volition, presumably due to self-stigmatisation and low morale following the test results. The respondent also stated that it still considered the applicant to be its employee, as it had not terminated his employment contract.

Decision

In its ruling, the court found that the applicant's employment had been constructively terminated because of his HIV/AIDS status. The court noted that the respondent's claim that the employee had refused to come to work on his own volition could not be true, as there was evidence that the applicant's lawyer had written a letter to the respondent demanding that the applicant be recalled to work and paid compensation for discrimination. However, there was no evidence that the respondent had replied to the letter or denied the allegations contained therein. The court also found that the respondent had been careless with its employees' confidential medical information, as it had disclosed the applicant's HIV/AIDS status to many of its employees and disclosed the health status of another employee in its defence to the suit.

The court held that even though there are very few statutory and judicial regulations on workplace discrimination on the ground of medical status in Nigeria, it could apply the definition of 'discrimination' contained in the ILO Discrimination (Employment and Occupation) Convention 111, the Lagos State Protection of Persons Living with HIV and Affected by AIDS Law and the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act.

The court also held that the respondent's policy of compulsory HIV/AIDS testing was capable of creating an atmosphere of fear among its employees, which could contribute to the spread of the disease, as employees with HIV/AIDS are likely to be reluctant to disclose their HIV/AIDS status for fear of losing their jobs. The court further held that such compulsory testing had infringed the applicant's fundamental rights and dignity. The court awarded damages against the respondent for breach of the applicant's fundamental human rights.

Comment

There was clear evidence that the applicant had stopped working after his HIV/AIDS status had been disclosed and that, contrary to its claims, the respondent had not answered the applicant's repeated requests to be recalled to work. There was also evidence that the respondent had taken the step of redeploying the applicant to another department only after the suit was filed. These factors supported the applicant's claim that his employment had been constructively terminated due to his HIV/AIDS status.

However, this decision also highlights the delicate balance between fundamental rights and public health considerations in the workplace. Although the respondent appears not to have made the argument, it could have raised a challenge that its actions constitute an acceptable response by an employer conducting business with a high risk of HIV/AIDS transmission from person to person by virtue of the business' nature (eg, hospitals, medical laboratories, beauty salons and restaurants). In the present case, the applicant had worked in a department which made him susceptible to cuts and bruises, which may have increased the likelihood of him infecting other persons if certain precautions had not been adopted or observed. The possibility of infecting others in such circumstances was higher than if he had worked in another department. It is unclear whether this decision should be interpreted to mean that an employee's services should not be relinquished in such circumstances, especially where it is impossible to redeploy the employee to less risky roles.

In this regard, it is regrettable that the arguments presented before the court did not refer to the recently enacted HIV Anti-discrimination Act 2014 – a tailor-made law targeted at preventing discrimination against persons living with HIV/AIDS. The court thus had no opportunity to consider the act, including, the fact that under the act it is unlawful for employers to:

  • request the disclosure of a person's HIV/AIDS status as a pre-condition for employment;
  • force an employee to undergo HIV/AIDS testing; or
  • disclose a person's HIV/AIDS status.(2)

However, the act recognises the duty of an employer engaged in a business that carries a high risk of the occupational transmission of HIV/AIDS within the workplace to ensure that it adopts safety procedures that will mitigate such risk.(3) Perhaps if the respondent had based its arguments on the exemptions created under the act (ie, that the applicant's dismissal (even if admitted) had been necessary to engender a safe working environment for the applicant's co-workers), the court would have made pronouncements on the corresponding duties of employers to balance the rights of an individual with the health of the majority.

However, what is clear, is that employees cannot be subjected to medical testing without their consent and that disclosing the results of such testing without the employee's consent would constitute an infringement of the employee's fundamental rights to privacy and dignity. It is therefore advisable for employers to obtain prior written consent from employees for any medical tests. Employers should also take the confidentiality of the results of such tests seriously and ensure that they have a workplace policy on HIV/AIDS in place.

For further information on this topic please contact Jamiu Akolade at ACAS – LAW by telephone (+234 1 462 2094) or email (jakolade@acas-law.com). The ACAS – LAW website can be accessed at www.acas-law.com.

Endnotes

(1) Suit NICN/LA/265/2015.

(2) Section 8.

(3) Sections 15 and 16.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.