Employer forced me to test for HIV, disclosed positive result to colleagues, then fired me

A sad woman. Article 31 of the Constitution preserves the right of every person to privacy, protecting against unwarranted searches, seizures, and unnecessary disclosure of personal information.

Photo credit: Photo I Pool

What you need to know:

  • Article 31 of the Constitution preserves the right of every person to privacy, protecting against unwarranted searches, seizures, and unnecessary disclosure of personal information.
  • Moreover, the Employment Act is a pivotal legal framework overseeing employment relationships in Kenya.

Dear Vivian,

I am a single mother of three children. To provide for them, I work as a cook for an international construction company. Towards the end of 2023, I had taken many sick off days. Upon my return, my employer subjected me to an HIV test without my consent. When the test came back positive, my employer proceeded to disclose this information to my colleagues. Subsequently, my employment was terminated effective January 2024 on the grounds that they cannot have "sick" individuals on staff. I am left feeling aggrieved, embarrassed, traumatised and unsure of my rights. Please advise.

Milly, Kitui County

Dear Milly,

Your case highlights critical issues surrounding privacy violations and workplace discrimination, necessitating urgent legal attention and redress. In Kenya, the right to privacy is a fundamental constitutional right, safeguarded under Article 31. This article preserves the right of every person to privacy, protecting against unwarranted searches, seizures, and unnecessary disclosure of personal information, including details about family or private affairs.

Moreover, the Employment Act is a pivotal legal framework overseeing employment relationships in Kenya. Section 5 of this Act explicitly prohibits workplace discrimination, including discrimination based on HIV status. Your employer's actions, forcing you to undergo an HIV test and subsequently disclosing the results, constitutes a violation of both your right to privacy and the legal prohibition against discriminatory practices.

An important precedent and case law to consider is the case of Kenya Legal and Ethical Issues Network on HIV & Aids (Kelin) & three others v Cabinet Secretary, Ministry of Health & three others [2015]. In this landmark decision, the High Court of Kenya declared that mandatory HIV testing as a condition for employment or continued employment is unconstitutional and a violation of the right to privacy. This case establishes a clear legal stance against forced HIV testing, reinforcing your right to privacy in the workplace.

Given the circumstances you have outlined, it appears you may have strong grounds for legal action against your employer. One potential course of action is filing a complaint with the Kenya National Commission on Human Rights (KNCHR) or a nongovernmental organisation such as Kelin. These avenues provide investigation into human rights violations, provide recommendations for redress and contribute to bringing your employer to account for their actions.

In addition to filing a complaint, you might consider pursuing a case in the Employment and Labour Court. This avenue would allow you to seek redress for unfair termination and the violation of your rights under the Employment Act. Legal proceedings can include claims for compensation to address the harm caused and a court declaration affirming that your rights were violated.

The legal system is designed to protect individuals from such horrific violations, and seeking professional legal counsel will undoubtedly assist you in navigating the complexities of your situation.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).