UN Covenant;¹ ILO Recommendation² 

Dismissal/ Discrimination/ HIV/ Reference to international law to strengthen a decision based on European human rights law

This case originated when Mr I. B. lodged a complaint against the Greek state. The claimant considered that this country had breached Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Mr I. B. worked for the jewellery factory S. K. On 8 January 2005, he told three of his co-workers that he had contracted HIV. Faced with this situation, the claimant’s three co-workers demanded that the enterprise dismiss Mr I. B. The company’s other 70 employees quickly began to make the same demand. In light of this situation, S. K. proceeded to dismiss Mr I. B., paying him the corresponding compensation.

The claimant took his case to the Athens Court of First Instance, alleging that the sole reason for his dismissal were the unacceptable social prejudices and taboos surrounding HIV, and that S. K.’s actions had violated his personal rights since his value as a human being had been diminished. The Court of Athens concluded that the dismissal had been illegal, since it had exceeded the limits set by good faith or morals, and that the only reason for the termination of the employee’s contract had been the claimant’s illness. However, the Court did not accept the claimant’s argument that his personality rights had been violated. Subsequently, the Court of Appeal confirmed the ruling and, moreover, recognized that the claimant’s personality rights had been breached. Finally, the Court of Cassation overturned the ruling of the Court of Appeal, since it considered the dismissal to be justified by the employer’s interests in the sense of restoring peaceful working relations between employees and guarantee the smooth operation of the company.

In order to resolve the case, the European Court of Human Rights compiled the national provisions applicable to the case.

The Court then cited the international instruments relevant to the case in question, including the International Covenant on Economic, Social and Cultural Rights; and the ILO HIV and AIDS Recommendation, 2010 (No. 200). In relation to the last of these, the Court stated that:

“This Recommendation is the first human rights instrument concerning HIV and AIDS in the world of work [...] It provides, inter alia, as follows:

‘10. Real or perceived HIV status should not be a ground of discrimination preventing the recruitment or continued employment, or the pursuit of equal opportunities.

11. Real or perceived HIV status should not be a cause for termination of employment’.³

The Court considered that Mr I. B.’s dismissal was clearly the result of the stigmatization of a person who, despite being VIH positive, had shown no symptoms of the disease. Strengthening its decision with reference to international law, in the Court’s judgement this fact constituted a breach of the provisions of Articles 8 and 14 of the European Convention and proceeded to order Greece to pay moral and material damages to Mr I. B.