The court found it was unlawful discrimination contrary to Article 14 ECHR to dismiss an employee because of his colleagues’ fears about him being HIV positive. Article 14 (non-discrimination) could apply because the case fell within the ambit of Article 8 (right to private life).
European Court of Human Rights (ECtHR), October 2013. Full decision: HUDOC.
An employee tested positive for HIV. Staff complained to the employer about having to work with a colleague who was HIV positive, and demanded his dismissal. An occupational health doctor attempted to reassure staff, but they continued to demand dismissal. After considering various alternatives, the company dismissed him to preserve a ‘harmonious’ working environment.
Held by the European Court of Human Rights: the claim succeeded. There had been discrimination contravening Article 14 of the European Convention on Human Rights. Article 14 applied because the case fell within the ambit of Article 8 (right to private and family life).
Applicability of Article 8, right to private life
Article 14 (non-discrimination) only applies if the case falls within the ‘ambit’ of another Convention right. Here the court held it fell within the ‘ambit’ of Article 8.
The court had already held that dismissal on account of private activities could fall within Article 8, and referred to other cases such as Kiyutin (residence permit refused because of HIV). It was accordingly established that both employment matters and situations involving HIV-infected persons fall within the scope of private life. The HIV epidemic (sic) could not be considered only as a medical problem as its effects are felt in every sphere of private life.
Also, although the stated ground of dismissal was to preserve a good working environment, it was triggered by the announcement that he was HIV positive. His dismissal had resulted in him being stigmatised, which was bound to have serious repercussions for his personality rights.
The dismissal here was by a private employer, not national authorities. However, the complaint was of a failure on the part of the authorities to protect his private sphere against interference by his employer, which could engage the State’s responsibility.
As decided in Kiyutin, people living with HIV were a vulnerable group with a history of prejudice and stigmatisation. Therefore the State should be afforded only a narrow margin of appreciation in choosing measures that singled out this group for differential treatment on the basis of their HIV status.
Here there had been unlawful discrimination. The Greek Court of Cassation had failed to adequately explain how the employer’s interests prevailed over those of the claimant. On rather cursory grounds, having regard to the importance and unusual nature of the questions raised by the case, the Greek court had held that the dismissal was entirely justified on the grounds of the employer’s interests. Also the Greek court based its decision, justifying the employees’ fears, on a manifestly inaccurate premise, namely, that the claimant’s illness was ‘contagious’.
The case is particularly interesting as an indication that employment situations may be covered by Article 14, the non-discrimination provision in the European Convention on Human Rights. Article 14 only applies where the situation falls within the ambit of another Convention right, but here the court held the dismissal was within the ambit of Article 8 (private and family life). See Scope of European Convention Rights. That page also includes the later decision in Boyraz v Turkey (December 2014) where similarly a sex discrimination case was held to fall within the ambit of Article 8.
This may have practical importance where a condition does not meet the Equality Act definition of ‘disability’, since the health conditions that can give rise to a breach of Article 14 seem to be wider than the Equality Act. See Disability under Article 14 European Convention.
It is also interesting that the case involved a private sector employer but nevertheless fell within the Convention. The State was in breach of Article 14 by failing to protect the claimant’s private sphere against interference by his employer. See What is ‘discrimination’ under Article 14 European Convention?>Obligation on States to secure non-discrimination.
- Human Rights Act 1998/ European Convention (main page);
- Disability under Article 14 European Convention;
- Scope of European Convention rights – as to how far Article 14 may apply to employment situations;
- What is ‘discrimination’ under Article 14 European Convention?