The Star (Nairobi)

Kenya: Sh6.9 Million Award for Staffer Who Was Fired Over HIV

The claimant alleged discrimination against the respondent, particulars being; keeping her on casual employment selectively; paying her an inordinately low salary for equal work compared to her counterparts; refusing her recruitment on permanent basis and continuing to employ her on casual basis with very low pay compared to her colleagues in the same position for long period; testing her for HIV status without her consent; disclosing her HIV status to her superiors and colleagues and thereby violating her right to privacy; keeping her on short and progressively shorter contracts, with unequal terms due to her HIV status; refusing her paid maternity leave followed by an immediate termination of employment upon return from unpaid maternity leave.

Issues:

I. Whether HIV screening in the workplace for purposes of recruiting, retaining or promotion of employees is legal.

II. Whether employers are entitled to scrutinise the medical fitness of employees to be absorbed in their permanent services.

III. Whether the termination of employment based on HIV status and pregnancy is lawful.

Employment Law - employer & employee relationship - termination of employment - termination on grounds of HIV status and pregnancy - whether the termination of employment based on HIV status and pregnancy is lawful - Employment Act, section 29

Employment Law - Fair labour practices - fair remuneration - equal work for equal pay - reasonable working conditions - Employment Act, Section 5, Constitution of Kenya, 2010 article 41

Employment Law - employer & employee relationship - medical fitness scrutiny of employees - considerations/ tests for medical fitness scrutiny - Whether HIV screening in the workplace for purposes of recruiting, retaining or promotion of employees is legal - Whether employers are entitled to scrutinise the medical fitness of employees to be absorbed in their permanent services

Article 27 of the Constitution of Kenya, 2010 provided that;

"Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres."

Article 28 of the Constitution of Kenya, 2010 provided that;

"Every person has the inherent dignity and right to have that dignity respected and protected."

Article 41(2) of the Constitution of Kenya, 2010 provided that;

"Every person has the right to fair labour practices which includes the right to fair remuneration and reasonable working conditions."

Section 5 of the Employment Act provided that;

"(2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.

(3) No employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on the grounds of race, color, sex, language, religion, political or other opinion, nationality, ethic or social origin, disability, pregnancy, mental status or HIV status in respect of recruitment training, promotion and terms and conditions of employment or other matters arising out of the employment.

(4)An employer shall pay his employees equal remuneration for work of equal value."

Held:

Article 1 of the Convention Concerning Discrimination in respect of Employment and Occupation, 1958 proscribed discrimination which had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Therefore, the conduct of the respondent systematically and completely killed any of the claimant's chance of employment with the respondent mainly because of her sex, pregnancy and HIV status.

No employer in Kenya should require HIV screening for purposes of recruiting, retaining or promotion of employees at the work place. (Conditions of Work Digest, Volume 12.2/1993 at page 53)

Employers were entitled to scrutinise the medical fitness of their prospective employees. However, the actual test or consideration to be applied for judging the medical fitness in the context of employment had to necessarily correlate to the requirements of the job, and interests of the persons and property at the work place. In the employment context, an otherwise qualified person was one who could perform the essential functions of the job in question.

The right to life to a workman included the right to continue in permanent employment which was not a bounty of the employer nor could its survival be at the volition and mercy of the employer. Income was the foundation to enjoy many fundamental rights and when work was the source of income, the right to work then became such a fundamental right. (Air India Statutory Corporation v United Labour Union [1997] AIRSCW 430)

An employee could not be medically unfit merely by virtue of having been infected by HIV. Therefore, the respondent grossly erred in refusing the claimant employment on a permanent basis on the ground of her HIV status. They also breached her right to employment and equal treatment by subjecting her continuously to casual employment and inferior remuneration purely on the basis of her HIV status. Further that the respondent erred by terminating her employment under the pretext that her short term contract had expired when the sole reason for the adverse decision was her HIV status.

Section 29 of the Employment Act, 2007 provided that female employees were entitled to three months maternity leave with full pay. Therefore, the respondents unlawfully withheld the claimant's salary while she was on maternity leave.

The cumulative effect of the respondent's actions against the claimant constituted gross affront on her dignity contrary to article 28 of the Constitution of Kenya, 2010, a gross violation of her right to fair labour practices which included a right to fair remuneration and to reasonable working conditions contrary to article 41 of the constitution. Further, that the respondent grossly violated article 27 of the Constitution and in particular her right to equal benefit of the law and equal enjoyment of all rights was grossly violated by the discriminative conduct of the respondent in spite of the specific provisions of labour laws that guaranteed the claimant specific rights and equality at the work place.

Industrial cause allowed. Respondents to pay claimant total of Ksh. 6,971,346/= being damages for discrimination of the claimant on the basis of her HIV status and gross violation of her human dignity.

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