26 October 2012
Employment Lawyer Kiran Daurka discusses Discrimination at Work case concerning a HIV positive employee
I read an interesting article about a Greek case in which an employee, who is HIV positive, was sacked from his job because his colleagues found out about the diagnosis and refused to work with him. The employer dismissed the HIV positive employee on the grounds that the employer wished to ensure a peaceful running of the business.
The Greek courts upheld the Dismissal and the matter has now been referred to the European Court of Human Rights.I automatically thought that the Equality Laws in the UK would prevent a similar decision. However, it is rarely that straightforward and a similar defence to discrimination could be run in the UK to avoid liability for direct Disability Discrimination if an employer could show that it would have dismissed anyone (regardless of disability) who was the cause of industrial unrest: although it would be difficult to maintain that the disabled employee was the “cause” of the dispute over his colleagues.
In most cases, I would expect that an employer could probably not show that Dismissal would also apply to others in a similar situation. In any event, an employer will still need to show that Dismissal was the only way to address the dispute. Did the employer consider disciplining/educating the discriminators; or moving employees around to minimise interaction between the various employees; or dismissing the discriminators? If not, then the employee will probably be successful in bringing a claim for Unfair Dismissal and Disability Discrimination.
Finally, the dismissed employee (in the UK) might also have considered bringing claims for Discrimination and harassment against the individual employees that caused his Dismissal. The employer could potentially be deemed liable for those discriminatory acts if it failed to take steps to prevent those acts (such as implementing a diversity policy and training employees to comply with that policy). Watch this space as the Greek case is going to be heard in the European Court of Human Rights and I would be surprised if the Court did not attempt to overturn the decision which clearly undermines the very principles at the heart of Equality Laws.
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