An HIV-positive former waitress has won a precedent-setting case in the Kenyan High Court, after suing her doctor for unlawful disclosure of her HIV status and her employers for dismissing her based on that information. The case is remarkable because Kenya's constitution does not specifically prohibit HIV-related discrimination.
The 45 year-old woman – known by the intials JAO, in order to protect her identity – had testified that Dr Primus Ochieng tested her for HIV without her consent after she visited Nairobi’s Metropolitan Hospital in April 2002 with rash and chest pain. She also told the court that Dr Ochieng and the hospital had then disclosed her HIV status, again without her consent, to her employer, Homepark Caterers, before she found out her test results.
The woman was sacked later that month, after working for Homepark for eight years. Dr Ochieng testified that that he had prepared the medical report on his patient’s request and had not passed on the information directly to Homepark. In its defence, Homepark argued that her sacking was not related to her HIV status, and they had not seen a medical report when they sacked her. However, her letter of termination had said she had been sacked on medical grounds.
The High Court ruled that testing an employee or a prospective employee for HIV without their consent constituted invasion of privacy and was unlawful; that disclosing a worker’s HIV status to an employer without their consent was unlawful; and ending employment on the grounds of a person's HIV status was unlawful.
However, none of the defendants admitted liability, and the High Court ruling was made after an out of court settlement of 2.25 million Kenyan Shilling (approx. £17,700) was reached.
Kenyan HIV/AIDS advocates say the ruling is a major victory for human rights. "It's a lesson and a message to employers that people living with HIV and AIDS have got rights like any other person to work," a spokesperson told the BBC.
The case was extremely high profile in Kenya, and has also made the mainstream news in the UK. However, although The Guardian kept the woman’s identity protected, the BBC report printed the woman’s full name.