London, 17 October 2013

On 3 October 2013, the European Court of Human Rights (ECtHR) held that the failure by the Greek Court of Cassation to condemn a private company’s dismissal of an employee because he was HIV-positive, was a violation of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Specifically, the Court considered that the failure amounted to a violation of his right to protection from discrimination (article 14) taken together with his right to a private life (Article 8).

The applicant, Greek national I.B, had been working at a jewellery manufacturers since 2001. In 2005 he informed several colleagues that he feared he may be HIV-positive, a fact which was later confirmed. News of I.B’s condition circulated amongst the company’s 70 employees and in January and February 2005, I.B’s employer received written petitions from other employees asking them to dismiss him in order to ensure a safe working environment. Following the receipt of a petition signed by 33 employees on 21 February 2005, I.B’s employer dismissed him on 23 February 2005.

I.B took his case to the Greek courts, alleging that his dismissal was unlawful. Although both the Athens Court of First Instance, which found as a matter of fact that the dismissal had been based entirely on I.B’s health status, and the Court of Appeal found the dismissal to be illegal, Greece’s highest court, the Court of Cassation disagreed. The Court of Cassation held that the dismissal was not wrongful as it was done in order to restore harmonious collaboration between employees and the smooth functioning of the company.    

I.B brought his case to the ECtHR claiming that Greece had breached his rights to respect for private life (Article 8) and to non-discrimination (Article 14). He argued that the Court of Cassation’s finding that his dismissal because he was HIV-positive was lawful amounted to a violation of his private life. He further argued that his dismissal was discriminatory and could not be justified.

The ECtHR held that Articles 8 and 14 were applicable to I.B’s case. There was no doubt, relying on previous ECtHR decisions, that Article 8 encompassed the work of a person who is HIV-positive - HIV was not just a medical problem but one which impacted on all aspects of an individual’s private life. Further, Article 14 applied because it protected people from discrimination on grounds of their health status, including conditions such as HIV infection, in accordance with the Court’s earlier judgment in Kiyutin v Russia (Application No. 2700/10).

The Court found:

• I.B had been treated less favourably than other employees because he was HIV-positive. Such difference in treatment would only be lawful if it could be objectively and reasonably justified, i.e. it could be shown to be a proportionate means of achieving a legitimate aim.
• Given the ignorance in society about HIV’s effects and the stigma the illness attracts, persons who are HIV-positive are a vulnerable group. Accordingly, any difference in treatment they face will be strictly scrutinised by the court and must be justified by particularly good reasons.
• In considering whether the less favourable treatment of I.B was justified, unlike the Court of Appeal, the Court of Cassation had failed to weigh up the various interests at stake with sufficient thought. It had allowed the treatment to be justified on the basis of restoring calm to the business, when the disturbance was caused by the subjective misapprehension by other employees of the effects of HIV. 
• The Court of Cassation had failed to provide sufficient explanation of why the employer’s interests outweighed those of I.B and had not balanced the rights of the parties in a manner consistent with the requirements of the ECHR.
  

Accordingly, the Court held that Greece had violated Article 14 of the Convention read together with Article 8.

ERT welcomes the Court’s decision. Persons with HIV continue to suffer widespread prejudice and it is critical that court judgments make clear that this will not be tolerated and is in violation of the persons’ right to non-discrimination. The ECtHR’s judgment makes this point clearly. Further, ERT welcomes the Court’s rejection of the notion that an employer may justify a dismissal which, although not in itself the result of the employer’s prejudice, results from a desire to restore calm amongst employees with prejudicial and misinformed views.
 
To read the ECtHR’s Press Release summarising the case click here

To read the ECtHR’s judgment (in French) click here