Ratified treaty;¹ Instrument not subject to ratification²

Discrimination on the basis of HIV status/ HIV status as part of the medical examination/ Dismissal/ Right to privacy/ Protection of human dignity/ Reference to international law to strengthen a decision based on domestic law

In February 2002, the applicant was offered probationary employment for six months as a security assistant at the Building Society, the respondent in this case. The offer of employment stated that permanent employment was subject to a successful medical examination conducted by a doctor chosen and paid for by the Building Society. The applicant started working later the same month and in August 2002, she was sent a written request from the Building Society to submit a certified document of her HIV status, as part of the medical examination. The applicant responded by letter, stating that she declined to provide such a document: “As far as I know HIV status it’s a personal right, not for public or employment requirement”.  In October 2002, the applicant received a letter from the Building Society informing her that she would not be offered permanent employment. No reason was given for the termination of her employment.

In her Statement of Case, the Applicant sought “Reinstatement or payment for unfair dismissal” relief, including:

1. An order declaring the instruction of the Respondent to the Applicant to undergo an HIV test to be unlawful, because it violates the Applicant’s constitutional right to privacy.
2. An order declaring the Respondent’s decision to terminate the Applicant’s contract of employment on the basis that she might have HIV as discrimination on the basis of disability, and that such discrimination constitutes a denial of equal protection of the law as enshrined by the Constitution, as well as inhumane and degrading treatment.
3. An order declaring that failure by the Respondent to provide pre-test counseling and post-test counseling constitutes degrading treatment.
4. An order directing the Respondent to reinstate the Applicant and pay her six months’ compensation.

As there is no statutory regulation of HIV/AIDS and employment, the Labour Court argued that the Constitution, as the supreme law, is relevant when examining issues of HIV/AIDS at the workplace to the extent that it guarantees every person equality before the law and equal protection of the law and human dignity, and because it prohibits discrimination.

The Court also pointed out that there is a National HIV/AIDS Policy that addresses these matters and is in line with international guidelines. The Court found that the elimination of unfair discrimination and the promotion of non-discrimination are key objectives of this policy, and they give effect to international obligations of Botswana. The Court also observed that the Constitutional principle of the elimination of discrimination at the workplace is in harmony with the ILO Declaration on Fundamental Principles and Rights at Work, which reaffirms the ILO constitutional principle of the elimination of discrimination at the workplace. This was also found to be in line with the values of ILO Convention No. 111, which Botswana has ratified. The Court noted that relevant provisions need to be recognized when interpreting similar fundamental provisions under the Constitution.

Referring to the provisions of sections 3(a) and 7(1) of the Constitution of Botswana, the Court concluded that the requirement of submitting a document on HIV status is a violation of the right to liberty, and that termination of the contract was unfair and unlawful.

The Court ordered reinstatement of the Applicant, and compensation.

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

² ILO Declaration on Fundamental Principles and Rights at Work, 1998.