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Human rights
Kenya: Kenyan court intervenes in HIV stigma-related employment dismissal
2004-10-07, Issue 177
http://pambazuka.org/en/category/rights/25067
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A Kenyan woman with HIV has won the first round of a landmark court case claiming discrimination by her former employer. The waitress was sacked by her bosses at Home Park Caterers in Nairobi because, they discovered she had the virus that leads to AIDS from a hospital doctor who told them the results of the HIV test, which had been conducted without her consent, thus violating her right to privacy. In an 18-page ruling announced yesterday, High Court judge Lady Justice Murugi Mugo said the case was sufficiently reasonable to be heard and should go ahead.
A Kenyan woman with HIV has won the first round of a landmark court case claiming discrimination by her former employer.
The waitress was sacked by her bosses at Home Park Caterers in Nairobi because, she says, they discovered she had the virus that leads to AIDS. They found out because a hospital doctor told them the results of the HIV test, which had been conducted without her consent, she claimed.
This, said the woman - identified only as JAO - violated her constitutional right to privacy. Now she is demanding compensation from the catering firm, the doctor and the hospital. All three claimed the case should be struck out, arguing it was vexatious; that is, designed just to annoy them and not founded on a genuine cause. They also said it was also a waste of the court's time since it had no chance of success.
But in an 18-page ruling announced yesterday, High Court judge Lady Justice Murugi Mugo said the case was sufficiently reasonable to be heard and should go ahead. Ms JAO, through lawyer Otiende Amolo, is demanding that Home Park should either reinstate her or pay her damages for unfair dismissal. She also says her constitutional right to gainful employment was infringed upon when she was dismissed, which was a violation of her human rights. She is demanding compensation from Dr Primus Ochieng and his employers at Metropolitan Hospital and Metropolitan Health Services as well.
Ms JAO accuses Dr Ochieng and Metropolitan Health Services of disclosing her HIV status to Home Park without her knowledge or consent, thus violating her constitutional right to confidentiality. Dr Ochieng is also alleged to have breached his professional and statutory duty to counsel her and to disclose her HIV status to her. Ms JAO was sacked on April 30, 2002 after working at Home Park Caterers for eight years. Applying for the case to be struck out, Home Park's lawyer denied Ms JAO was dismissed because she had HIV and instead cited the reason as prolonged absenteeism due to her HIV status.
"She was more often absent for medical reasons than at work," they said. Home Park also claimed they were not party to the medical examination nor issuing her medical report. On his part, Dr Ochieng told the court in an affidavit that the former waitress went to his office in May 2002, and asked for a full medical report so she could seek medical attention at her rural home in Nyanza, to where she was moving after being sacked. She already knew she had HIV, having been tested the previous March. Dr Ochieng said he had then tested her, informed her of the result and prepared the report and handed it to her.
In her ruling, Lady Justice Mugo said the former waitress had not only shown reasonable cause of action since her dismissal could be regarded as inhuman treatment if the suit was successful, but it would also prove that her employer had acted contrary to the law and the constitution. "Given the nature of this case and the universality of the HIV/AIDS pandemic and the development of human rights jurisprudence together with the ongoing attempts at the harmonisation of the relevant conventions with domestic law, I would be hesitant to overlook the positive features of the application before me," she said. Lady Justice Mugo continued: "I choose to be guided by an English decision which held that it is not appropriate to strike out the claim in an area of developing jurisprudence, since in such areas decisions as to novel points of law should be based on actual findings of fact." She went on: "I find the decision useful as it relates to circumstances where the treatment of HIV/Aids patients by doctors, hospitals, employers and others has been put to legal scrutiny with a view to moulding attitudes and public policy, such the same should be free of discriminatory tendencies. And giving judgment. I find the case discloses a reasonable cause of action."