ABUJA – On 26 September 2018, the National Industrial Court of Nigeria set precedent on the rights of people living with HIV in the workplace. In a scathing judgment that condemned the stigma against people living with HIV, the Court held that employers are prohibited from coercing existing or prospective employees to undergo HIV testing and that dismissing employees on the basis of their perceived or actual HIV-status is unlawful and discriminatory.
The Claimant in the case, Mr X, was employed as a security guard at the United States Embassy in Abuja by Sterling Operation and Kings Guard Nigeria Limited. Mr X sued his employer for forcing him to undergo an HIV test and dismissing him on the basis of his HIV status. Mr X’s former employers denied that Mr X was their employee and denied that he had been dismissed on the basis of his HIV-status.
Judge Agbakoba of the Abuja Industrial Court, found in Mr X’s favour and held that the 2014 HIV and AIDS Anti-Discrimination Act is clearly applicable against private employers and prohibits discrimination against existing and prospective employees.
The Court held further that “HIV testing is not a compellable medical enquiry for employment” and while an employer may under certain circumstances require an employee to undergo a medical examination of fitness under the Labour Act, they are not entitled to make an employee undergo an HIV test. The requirement in Mr X’s employment contract to undergo HIV testing “offends the law and constitutes an act of discrimination” as well as an unfair labour practice.
The Court held that in line with international and regional law, the Anti-Discrimination Act prohibits dismissal on the basis of a person’s HIV-positive status and stated that job applicants cannot be obliged to disclose HIV-related personal information.
The Court declared that Mr X’s employers had violated his rights under the Anti-Discrimination Act, the Constitution, the Labour Act and the African Charter on Human and Peoples’ Rights Act. Moreover, the Court awarded Mr X damages to an amount of over five years’ salary, “[c]onsidering the stigma and opprobrium attached to HIV and the cavalier manner” in which Mr X had been treated by his employer.
Lawyers Alert represented Mr X through lawyers, Mr Bamadile Jacobs and Mr Sunday Adaji. Mr Rommy Mom, the Executive Director of Lawyers Alert said, “The Court has not only affirmed the rights of people living with HIV to equality, dignity, privacy and fair labour practices but it has also empowered people living with HIV, like Mr X, who continue to live in the shadows of stigma, to know they can enforce their rights. The decision is a warning against employers that the law will attach consequences to HIV-based discrimination.”
Annabel Raw, Health Rights Lawyer at the Southern Africa Litigation Centre, which supported the case said, “The team from Lawyers Alert participated in trainings for lawyers funded under the Africa Regional Grant on HIV: Removing Legal Barriers between 2016 and 2018. Their skill and commitment as human rights activists was shown in how they used their knowledge to identify clients and take up cases as well as organising training opportunities for other lawyers in Nigeria. This kind of legal support is a powerful antidote to stigma and discrimination that people living with HIV face despite the existence of good laws on paper.”
NOTE: The Court granted an order to protect the identity of the claimant, whose name has been anonymised as “Mr X”. In order to protect Mr X’s identity and prevent any public disclosure of his HIV status, no information may be reported that will lead to his personal identification.
For background on the case and the judgment: http://www.southernafricalitigationcentre.org/2018/10/08/nigeria-mandatory-hiv-testing-and-dismissal-of-an-employee-on-the-basis-of-hiv-status/