Nairobi — Kenyan businesses could soon face a wave of legal suits on wrongful dismissals of HIV-positive people, as the stigma associated with the disease weakens and more people openly declare their status.

Much depends on the outcome of a case filed in Nairobi by a former waitress against a catering company, in which she alleges that she was unknowingly tested for HIV and subsequently dismissed because the results showed she was HIV-positive.

In its defence, the catering firm says that it dismissed the waitress because of chronic absenteeism, and not on the basis of her HIV status.

Gershon Konditi, the executive director of the Federation of Kenya Employers (FKE), said his organisation had observed the trend towards HIV-related litigation, and cautioned that it could impact negatively on the employment of those who are HIV-positive as employers move to safeguard their positions.

"Although we have not conducted a study on the issue, we have noted the trend of taking employers to court by HIV-positive people," Mr Konditi said. "The downside of this trend is that it will raise the cost of doing business, and employers might be compelled to throw compassion out of the window as they protect their interests."

In the past three months alone, two the prominent organisations, the Mbagathi District Hospital in Nairobi and the Kenya Pipeline Company (KPC) have faced accusations of discrimination by HIV-positive people. The latter could be in court as early as this week to defend itself against an accusation that it denied a driver employment in 2002 because of his HIV status.

Several organisations dealing with issues of HIV/Aids and HIV-positive individuals, The East-African has established, are keenly following the case with a view to launching legal action if the suit by the waitress succeeds.

"We are receiving six to 10 complaints weekly on workplace HIV, and though we are trying to resolve the matters through negotiation, it is inevitable that some cases will end up in court," Asunta Wagura, a prominent Aids activist and chief executive of the Kenya Network of Women with Aids, told The East-African. "The challenge for us is that there is no legal framework under which to seek redress."

According to Ms Wagura, few HIV-positive people considered court action just a couple of years ago because of fear of having to declare their HIV-status in public.

The chief executive of the Kenya HIV/Aids Business Council (KHBC), George Wainaina, also acknowledged that businesses were likely to face more suits in the coming months as a result of decisions taken over the past few years. KHBC has a membership of over 120 companies.

"The situation has improved somewhat over the past two years, and fewer companies are now actively discriminating against HIV-positive people, but a lot remains to be done," Mr Wainaina said. "More legal actions cannot be ruled out in coming months."

Legal and medical experts also attribute the rise in the number of suits to an increase in the number of civil society organisations ready to take up cases of dismissed employees onpro bono basis.

In Nairobi alone, there are almost a dozen donor-funded organisations offering free legal aid. "The fact that treatment has made HIV a manageable condition has done much to lessen the stigma," Dr Ephantus Njagi, a HIV specialist and lecturer at the University of Nairobi told The EastAfrican. "Many HIV-positive people are now less likely to be deterred from taking legal action by the prospects of their HIV status being known."

Analysts also say that lack of a specific HIV statute has left a grey area in so far as issues of stigma and discrimination are concerned, leaving employees vulnerable to discrimination and employers to nuisance suits.

Kenya's HIV/Aids legislation, first drafted in 2002, is still pending in parliament. The draft law criminalises discrimination on the basis of HIV status in such areas as employment, insurance, and banking.

Kenya's first attempt to deal with the challenges of HIV in the workplace were spearheaded by the FKE, which five years ago developed a voluntary code of conduct for employers. The code discourages discrimination against employees on the basis of their HIV status, and advises members to allocate infected employees duties they can execute instead of dismissing them.

According to a survey by the business consulting firm, PricewaterhouseCoopers, Kenya's big businesses have responded fairly well to the challenge of HIV among the workforce, establishing workplace HIV/Aids policies and treatment programmes.