The complainant was dismissed from his position in a jewellery business after testing positive for HIV. While the complainant was absent on sick leave, several of his co-workers, suspecting that he might be infected with HIV, underwent HIV testing. The results were negative. Soon afterward, the complainant’s co-workers learned that the complainant had tested HIV-positive. A group of co-workers immediately demanded that management remove him from the workplace. Approximately half the work force signed a petition urging that the complainant be removed. While the employer was initially supportive of the complainant, she soon ceded to the pressure placed upon her by her employees and dismissed the complainant. The Greek Cassation Court held that the employer’s decision to dismiss the complainant did not constitute discrimination, but was instead justified in the circumstances, given the pressure that the employer was under and the danger posed to the smooth operation of the enterprise by the complainant’s continued presence.
Decision and Reasoning
The European Court of Human Rights reversed the Greek Cassation Court’s decision, finding that the employer had unfairly discriminated against the complainant, violating article 14 of the European Convention on Human Rights. The Court cited ILO Convention No. 111 and Recommendation No. 200, referring extensively to the Recommendation’s provisions on non-discrimination. The Court held that, by terminating the applicant’s employment, the employer had further stigmatized a person who, even though he was HIV-positive, had shown no signs of illness. The Court also found that the co-workers’ threats were irrational as they were not based on valid scientific evidence. The Court held that if the applicant’s HIV status was not disturbing the smooth operation of the enterprise (such as by preventing the employee from carrying out the duties of his work), his HIV status alone could not be a valid basis for terminating his employment.