Law protects HIV-positive employees

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South Africans living with HIV need not fear unfair discrimination or unfair treatment in the workplace or as prospective candidates for employment.

Not only have the highest courts in the land made it clear that discrimination in the workplace on the grounds of HIV status is prohibited, the Department of Labour's Code of Good Practice on HIV and Aids also seeks to eliminate unfair discrimination and stigma against HIV positive South Africans.

However, the battle to end workplace discrimination against HIV positive employees is an ongoing one, as evidenced by recent cases against The South African National Defence Forces, brought by employees who were denied employment because they were HIV positive.

Unfair discrimination

Employers and employees alike should be aware that the law has stood behind HIV-positive employees since 2000, when the Constitutional Court found that South African Airways' refusal to employ a man on the grounds of his HIV-positive status, constituted unfair discrimination, impaired his dignity and violated his right to equality.

The court held that any discrimination based on the HIV status of an employee or prospective employee is unconstitutional, unreasonable and an unjustifiable infringement of the right to not to be discriminated against as well as the right to dignity.

The Constitutional Court ordered South African Airways to offer employment to the HIV-positive applicant, and categorically pronounced its view on the issue, stating that the minority living with HIV has been subjected to extreme prejudice, marginalisation and stigmatisation due to their status. Consequently, said the Constitutional Court, persons living with HIV are the most vulnerable persons within South Africa and should thus be afforded protection by the law.

Despite the ruling by the Constitutional Court and the aforementioned rights referred to in its judgment being enshrined in the Constitution of the Republic of South Africa since the nineties, implementation and enforcement of these rights in the workplace appears to have been a slow process.

Enforcing HIV testing

In 2008, the High Court in Pretoria agreed with the principles laid forth in the Constitutional Court's 2000 decision and found that employment practices by the South African National Defence Force relating to employees who were HIV positive was unconstitutional. At the time, the SA Defence Force had been enforcing an HIV-testing policy whereby anyone who tested HIV positive would be automatically excluded from being recruited, deployed externally or promoted within the Defence Force. The court found the HIV-testing policy to be unconstitutional and ordered that it be set it aside, directing further that the Defence Force formulate a new HIV policy.

Despite adopting a new HIV-testing policy, it has recently come to the forefront before the North Gauteng High Court that the new policy is no different from the earlier policy which was declared unconstitutional in 2008. The court in its most recent decision on the issue found that the new policy still constituted a 'blanket ban' on the recruitment of anyone infected with the virus despite medical evidence that they are fit and healthy to perform their employment duties. The court ordered that the Defence Force offer employment to the HIV-positive applicants.

Not only have the highest courts in the land made it clear that discrimination in the workplace on the grounds of HIV status is prohibited, in 2012 the Department of Labour has published a Code of Good Practice on HIV and Aids, which has been signed by the Minister of Labour and gazetted. The primary objective of the code is to eliminate unfair discrimination and stigma in the workplace based on real or perceived HIV status, promote access to equitable employee benefits, employment protection and management grievance procedures.

Code's intention

The Code's intention is to motivate employers and workers to commit to mitigate the impact of the HIV epidemic in the workplace by providing policy guidance, step by step direction on what employers and employees need to do in the workplace to eliminate unfair discrimination as well as how to promote equal opportunity and fair treatment. The Code provides direction on how to acquire a safe working environment, and obtain optimum management of HIV and Aids in the workplace.

Following the courts' several unanimous rulings on the subject there can be no doubt that HIV positive employees and prospective employees are thoroughly protected by the law from unfair discrimination. Similarly, according to the Code of Good Practice, those employees or prospective employees living with Aids are so too protected from unfair discrimination.