Industrial court of Kenya - Cause No. 1161 of 2010

Facts

The Claimant, Ms. K., was employed as a telephone operator on a casual basis, while her two male counterparts at the same time were employed on a permanent basis. Her salary was lower than her male counterparts and she was not granted any other allowances or benefits. She applied for a new position and was informed that her application had been successful, but that the position was contingent upon her undergoing a medical examination. An HIV test was performed. A few days later the company physician informed her that she had tested HIV positive. She had not been informed that she would be tested for HIV nor did she receive any pre- or post-counselling. Subsequently, she received no further information regarding the permanent position. Instead, she continued working on a casual basis. She received no allowances or health benefits, in contrast to her male colleagues, who were earning up to 4.2 more than the applicant. After some time, she asked to be placed on a permanent contract, but was refused. She later learned from another employee that there had been a discussion about her HIV status in the human resources department and that she had not been offered the permanent position because of her HIV status. When she became pregnant, she did not receive the paid maternity leave benefits called for under national legislation and was kept on a casual basis when she returned to work. Some months after returning to work, she received a letter of termination from her employer stating that her employment contract could not be renewed and she was therefore dismissed.

Decision and Reasoning

The Court held that any employee or prospective employee could not be deemed to be medically unfit solely on the basis of HIV status. The Court found that the claimant had initially been discriminated against on the basis of her sex, in that she did not receive equal remuneration for work of equal value. She had also been subjected to pregnancy discrimination. The Court also found that the claimant had been discriminated against on the basis of her HIV status. The Court found that the employer had discriminated against the applicant by refusing her recruitment on a permanent basis due to her HIV status and subjecting her to HIV testing without her knowledge or consent and without pre- or post-counselling and for violating her right to confidentiality. The Court found that the employer’s practices were in violation of the Equal Remuneration Convention, 1951 (No. 100) and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) as well as of the provisions of the HIV and AIDS Recommendation, 2010, No. 200. The Court awarded the complainant damages in the amount of Kshs 6,971,346, including compensation for unlawful and unfair termination and exemplary damages for discrimination and gross violation of her dignity.