In the case of IB v Greece, the European Court of Human Rights (ECtHR) has ruled that a HIV-positive employee’s dismissal due to his health status is a violation of Article 8 (the right to privacy and family life) read in conjunction with Article 14 (freedom from discrimination).
The applicant IB, upon learning that he was HIV positive, confided in a number of colleagues. The applicant’s colleagues began pressuring their mutual employer to fire IB, based on misguided fears about the contagious nature of the disease. The employer even arranged for a doctor to speak with the staff to reassure them, but the employees still demanded that IB be dismissed. The employer eventually dismissed IB, and IB then brought proceedings before the Greek courts.
The first two Greek courts held that the dismissal was illegal. They said if an illness did not have a detrimental impact on the smooth running of a company (through absenteeism or through reduced capacity to work) then it was not a justification for dismissal. The employer had acknowledged that the illness had not impaired the applicant’s ability to work. The court ruled however that the applicant didn’t have to be reinstated as he had found another job. However Greece’s supreme court, called the Court of Cassation, overturned the previous judgments, saying that termination was not wrongful where it was justified by the employer’s interests. This could include the restoration of harmonious employee relations or the company’s smooth functioning. The case was then referred to the ECtHR.
The ECtHR said that IB had been a victim of discrimination within the meaning of Article 14 read in conjunction with Article 8. The ECtHR’s key conclusion was that the Greek supreme court, ie the Court of Cassation, hadn’t explained why the rights of the employer outweighed those of the employee and did not balance the parties’ rights in a manner consistent with the ECHR.
The Court’s press release says: “The employees’ prejudice could not be used as a pretext for ending the contract of an HIV-positive employee. The need to protect the employer’s interests had to be carefully balanced against the need to protect the interests of the employee, who was the weaker party to the contract, especially where that employee was HIV-positive.”
Click here to read the ECtHR’s press release about this decision.
Click here to read the full judgment (available only in French).
Click here to read an article about the case by the International Justice Resource Centre.
Click here to read an article about the case on the Strasbourg Observers Blog.