WUNRN
AIDSMAP
July
11, 2008
Kenya
Woman Wins Landmark Wrongful Dismissal HIV Status Case
Edwin J. Bernard
An
HIV-positive former waitress has won a precedent-setting case in the Kenyan
High Court, after suing her doctor for unlawful disclosure of her HIV status
and her employers for dismissing her based on that information. The case is
remarkable because Kenya's constitution does not specifically prohibit
HIV-related discrimination.
The 45 year-old woman – known by the intials JAO, in order to protect her
identity – had testified that Dr Primus Ochieng tested her for HIV without her
consent after she visited Nairobi’s Metropolitan Hospital in April 2002 with
rash and chest pain. She also told the court that Dr Ochieng and the hospital
had then disclosed her HIV status, again without her consent, to her employer,
Homepark Caterers, before she found out her test results.
The woman was sacked later that month, after working for Homepark for eight
years. Dr Ochieng testified that that he had prepared the medical report on his
patient’s request and had not passed on the information directly to Homepark.
In its defence, Homepark argued that her sacking was not related to her HIV
status, and they had not seen a medical report when they sacked her. However,
her letter of termination had said she had been sacked on medical grounds.
The High Court ruled that testing an employee or a prospective employee for HIV
without their consent constituted invasion of privacy and was unlawful; that
disclosing a worker’s HIV status to an employer without their consent was
unlawful; and ending employment on the grounds of a person's HIV status was
unlawful.
However, none of the defendants admitted liability, and the High Court ruling
was made after an out of court settlement of 2.25 million Kenyan Shilling
(approx. £17,700) was reached.
Kenyan HIV/AIDS advocates say the ruling is a major victory for human rights.
"It's a lesson and a message to employers that people living with HIV and
AIDS have got rights like any other person to work," a spokesperson told
the BBC.
The case was extremely high profile in Kenya, and has also made the mainstream
news in the UK. However, although The Guardian
kept the woman’s identity protected, the BBC report
printed the woman’s full name.