Rethinking HIV/AIDS policy in workplace, considering Akinola v. Ocean Marine Solutions
The recent decision of the National Industrial Court of Nigeria (NICN) in suit No. NICN/LA/410/2019: Adewunmi Akinola v Ocean Marine Solutions Limited, given on October 25, 2021 by Hon. Justice I.G. Nweneka, has again brought to the fore, the gaps in many a (near-absent) workplace policy enabling an inclusive and supportive work environment for employees living with the human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS).
In the case under reference, the claimant was employed by the defendant company as a cleaner. In April 2018, the claimant was directed by the defendant to go for a medical test at the defendant’s retained medical facility, without informing her of the nature of the test. The claimant went for the medical test, but the result of the test was not disclosed to her, even as same was sent directly to the defendant, which also neither disclosed it to the claimant, nor counselled her, and did not treat the medical report with confidentiality.
News of the claimant’s HIV status quickly spread throughout the company, and in no time, the claimant became a plague to be avoided by fellow employees. The claimant was not allowed by the defendant’s human resources (HR) to carry on her daily activities and was subsequently ostracised and restrained from entering the company. Rather, the claimant was directed by the company’s HR to go take further tests from other medical facilities. From the text of the judgment, the facts further revealed that on account of the unlawful disclosure of the claimant’s health status to her colleagues, the claimant suffered psychological torture, emotional trauma, and was victimised, stigmatised, and discriminated against by her fellow employees as well as the company’s management.
Ultimately, the defendant summarily laid off the claimant without notice or payment in lieu of notice on account of the result of the tests carried out. Upon taking evidence of the parties, and hearing arguments of counsel on both sides, the Court found thus: i. The defendant’s refusal to disclose the nature of the medical test to the claimant amounts to an infringement of her right; ii. The defendant’s failure to discuss the results of the test with the claimant is wrongful; and, iii. The defendant’s disclosure of the test results to the claimant’s colleagues and locking her out of the defendant’s premises is discriminatory and amounts to stigmatisation.
The Court awarded compensation for wrongful termination of the claimant’s employment, discrimination at the workplace, stigmatisation, embarrassment, psychological and emotional trauma, in the sum of ₦2,100,000 and an additional ₦100,000 as costs of action.
In reaching its decision, the Court considered the provisions of the National Guidelines for HIV Counselling and Testing, 2011 (the Guidelines), dealing with pre-test and post-test counselling, number of tests to be conducted before any person can be declared HIV positive, ethical and legal considerations underpinning the principles of counselling, confidentiality and consent, especially the need for informed consent, which must be sought and obtained by any person prior to the conduct of HIV testing, and the implication of a positive diagnosis on any person’s personal and professional life.
At the core of the Guidelines are principles that speak to the fact that HIV testing must be voluntary, with the clients making an informed decision about accepting an HIV test, the procedure should be explained to the client and informed consent obtained to ensure that testing is done without coercion, the choices of individuals must be respected with individuals having the right to refuse testing at any time even after the blood sample has been taken for the test, when anonymous testing is carried out, clients are required to either put their signatures or fingerprints on an informed consent document or verbal consent. Under the Guidelines, mandatory HIV testing is not acceptable, save in special circumstances.
The Court also considered the provisions of sections 3, 4, 5, 9, and 14 of the HIV and AIDS [Anti-Discrimination] Act, 2014 to the effect that people living with HIV/AIDS have a right to freedom from discrimination, and should not be deprived of access to employment, continued employment as well as all associated employment benefits. Under this Act, employers are obligated to actively protect the human rights of people living with or affected by HIV/AIDS by eliminating discriminatory practices and policies. It is pertinent to state that, section 8(1) of the Labour Act provides for medical examination of an employee who enters into a contract of employment with an employer, the medical testing must be for fitness for work and any other responsibility as a precondition for an offer of employment; and any other responsibility as provided in any existing law. More importantly, the Court held that any employment based on medical test must respect the human rights of the employee, and HIV testing without informed consent is a serious human rights violation.
The undoing of the defendant was its failure to prove its compliance with extant laws in meeting the allegation of facts presented by the claimant. Without mincing words, the defendant was in the wrong in the way and manner it treated the claimant in this case. Granted that the defendant’s HR department took all of its actions in a bid to protect other employees, all of those actions done in contravention of relevant laws can only result in liabilities for the defendant. Although the defendant, in addition, assayed to shift liability to the health management office, but the Court found that the health management office and the medical practitioner were acting at the defendant’s behest, and were therefore agents of the defendant who can bear no liability.
The breach of the claimant’s data privacy and confidentiality was another crucial aspect of the Court’s judgment in the case under reference. The Court found that the defendant, as employer of the claimant, owes her a duty to keep the information about her HIV positive status confidential, and not to disclose it to anyone without her prior written consent except as may be required by law, and the unlawful disclosure of the claimant’s HIV status was a breach of her right to privacy guaranteed under section 37 of the 1999 Constitution (as amended). The Court also found that the natural consequence of this unauthorised disclosure of Claimant’s HIV positive status is discrimination.
What are the takeaways from the judgment of the Court? For sure, companies must do better. Employees must not be ostracised or discriminated against on account of their health status. More than this, employers must have in place, a HIV/AIDS policy either standing alone or subsumed under the company’s general health policy in its employee handbook. Put simply, there is a need for employers to start putting in place policies to protect employees living with HIV/AIDS, and how the confidential information of employees, especially relating to employees’ health must be treated.
Recall that one of the pitfalls of the defendant in this case was that it was unable to prove that it indeed had a yearly medical screening procedure for relevant staff in place, neither did it have any internal policy in place relating to medical investigation of its employees prior to, or during the course of employment.
Beyond the immediate foregoing, what is clear, is that companies’ HIV/AIDS policies must be in line with relevant local legislations as well as international labour conventions and best practices, which the National Industrial Court is empowered by section 254C of the 1999 Constitution (as amended) to enforce in determining the relationship between employers and their employees. The Court has supplied many pointers, which employers must look out for as follows:
HIV testing must be voluntary, and employees must be afforded the opportunity of making an informed decision about accepting an HIV test;
The employer must ensure that its retained health facilities explain the procedure to its employees and that informed consent is obtained to ensure that testing is done without coercion;
The choices of employees must be respected; they have the right to refuse testing at any time even after the blood sample has been taken for the test;
Anonymous testing does not obviate the need for employees to either put their signatures or fingerprints on an informed consent document or verbal consent;
People living with HIV/AIDS have a right to freedom from discrimination, and should not be deprived of access to employment, continued employment as well as all associated employment benefits;
Employers must actively protect the human rights of employees living with or affected by HIV/AIDS by eliminating discriminatory practices and policies;
It is wrong to require HIV test as a precondition to offer employment, save where failure to take such tests constitutes a clear and present danger of transmission to others;
An employee’s health status should not warrant the termination of his/her employment;
Contemplating the provisions of section 8(1) of the Labour Act, medical testing prior to employment must be for fitness for work and any other responsibility as a precondition for an offer of employment, which responsibility must be provided in any existing law; and
Any employment based on medical test must respect the human rights of the employee, and HIV testing without informed consent is a serious human rights violation.
In conclusion, this is the second judgment from the NICN on the subject of workplace discrimination/harassment on account of HIV/AIDS; the first being Onuhikemi v Smirdu (Suit No. NICN/LA/265/2015; decision of which was made on July 15, 2016; per Hon-Justice Obaseki-Osaghae).
This second decision is obviously a landmark decision, and commendable. It would seem that the judge wrote it, envisaging the effect of the judgment in guiding future decisions, and also helping to bring awareness to HR personnel and employers on the need to have HIV/AIDS policy document in place. From the text of the judgment, one can easily see that the judge properly researched and took it upon himself to cite authorities that were not made available by counsel. It is easily discernable that there was discrimination in the way and manner in which the claimant was compelled, and quite unfortunate that the claimant’s employment was terminated on account of her HIV status. The facts appear as if the company orchestrated a factual matrix and threw caution to the wind. There was no restraining concern as to the outcome of the actions of the company.
The compensatory damages granted, which is ₦2 million, arguably, may not represent sufficient compensable damages in (i) the fact circumstance of the case; (ii) the need to issue a ‘policy statement’ decision, perceptively as deterrent for similar/future failing of workplace employment discrimination based on health disability. The incremental approach to the grant/award of compensable damages notwithstanding, future decisions will no doubt have sufficient persuasive precedent in future to draw from in the illuminating decision under review.
• Kuti is a Partner and Abraye, an Intermediate Senior Associate at Perchstone & Graeys LP.