Ratified treaties;¹ Instruments not subject to ratification;² Work of international supervisory bodies³

Discrimination on the basis of HIV status/ Dismissal/ Establishment of a jurisprudential principle based on international law

Following the dismissal of a worker carrying the HIV virus, an appeal was lodged against the sentence of the lower court, which held that there was no national legal provision that guaranteed employment to a worker carrying the HIV virus, and that, therefore, the worker could be dismissed without grounds. The lower court ruled that this would only be annulled if there had been a discriminatory practice, circumstances that were not proven by the worker in question.

In this respect, the Court declared that according to its own case law, the dismissal of a worker carrying the HIV virus was presumed to be discriminatory, and that the responsibility of proving that the dismissal was in accordance with other, legitimate reasons lay with the employer.

Likewise, the Court observed that this was in agreement with the international standard enshrined in both ILO Recommendation No. 200 on HIV and AIDS and the World of Work, adopted in 2010, and ILO Discrimination (Employment and Occupation) Convention No. 111.

In this respect, the Court stated that the Recommendation requires member States to consider the possibility of offering protection equal to that established by Convention No. 111 with the aim of preventing all discrimination based on the real or supposed condition of being an HIV carrier.

Similarly, Convention No. 111 establishes the obligation of all ratifying member States to formulate and apply a national policy that aims to promote by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination and the obligation, among others, of repealing any statutory provisions and modifying any administrative practices which are inconsistent with the policy.

Moreover, the ILO Committee of Experts on the Application of Conventions and Recommendations highlighted the issue of distribution of the burden of proof, underlining the need to deal with matters related to the violation of human rights with flexibility in terms of the production of evidence.

In light of the above, the Court ordered the reinstatement of the worker to his post, the payment of wages owing and the recognition of all the rights inherent in the labour relation from the date when the dismissal took place.

¹ ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

² ILO HIV and AIDS Recommendation, 2010 (No. 200).

³ ILO Committee of Experts on the Application of Conventions and Recommendations.