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THE CASE OF AN EMPLOYER REQUIRING AN EMPLOYEE TO UNDERGO MANDATORY HIV TEST

Mr. X V. Mr. Jakobus Brink & 3 Ors NICN/ABJ/464/2016


WHETHER AN EMPLOYER CAN LAWFULLY COMPEL AN EMPLOYEE TO UNDERGO HIV MEDICAL TEST?


Sometimes in October 2014, Mr. X was employed by his employer, a security

company by means of a written contact of employment, and posted to work at an

embassy in Abuja, Nigeria. After three months, his employers ordered him to

undergo a medical test at a designated hospital. Mr. X, scared of losing his job

should he refuse the test, went to the said hospital for the test. Afterwards, he

was given a sealed envelope and told to deliver same to his employers. Before

submitting it, however, he opened the sealed envelope and found that an HIV test

had been carried out on him without his knowledge.


Mr. X was shocked and distressed by this information. What was more, the

medical report the hospital gave him did not include any form of certification of

his fitness for employment. Despite this, Mr. X delivered the report to his

employer based on his understanding that the test was mandatory.

Ten days later, Mr. X was informed verbally, without any written notice by his

immediate boss of the termination of his services owing to his HIV status.


Undeterred, Mr. X went to the overall boss to confirm the termination of his

employment. His employers told him it was so and further averred that the

termination was due to the medical report which showed that he was HIV

positive. Mr. X asked his employers how he could remedy the situation and was

advised by his boss to obtain cover letters from two doctors. He did. In the two

letters, it was stated that Mr. X was fit to work and undertake tasks assigned to

him. One of the two letters further warned his employer of the consequence of

stigmatizing and or discriminating against Mr. X on grounds of his HIV status. Mr.

X submitted both letters to his employer and the latter promised to get back to

him. It did not. Constant visits to his place of work to remind them of their

promise proved as futile as all his efforts to get his employers to reinstate him.


Thereafter, Mr. X with the assistance of Lawyers Alert filed a case in the National

Industrial Court of Nigeria, Abuja, against his employer. Mr. X asked the Court to

declare the conduct of his employer a violation of his rights under the Nigerian

Constitution, the HIV and AIDS (Anti-Discrimination) Act, 2014, the Labour Act Cap

L 17 LFN 2004, the Universal Declaration of Human Rights, and the African Charter

on Human and Peoples’ Rights.


OUTCOME:

  • On the 26th day of September, 2018; the National Industrial Court of Nigeria, Abuja held in Mr. X’s favour, rejecting the employer’s denial that he was their employee and their assertion that he was not compelled to undergo an HIV/AIDS test.

  • Specifically, the Court held that the HIV and AIDS (Anti-Discrimination) Act 2014 –“recognizes and prohibits discrimination to a job applicant as well as in the pre-employment recruitment process and the Act clearly applies to private sector employment”. (Emphasis added)

  • The Court held that employers cannot force their employees or potential employees to undergo a HIV test.

  • The court awarded monetary compensation in favour of Mr. X.

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