SALC is working with Lawyers Alert, Nigeria to challenge the mandatory HIV testing of an employee of a security company and his subsequent dismissal on the basis of his HIV-status, in X v Brink and Others.
The applicant, Mr X, was an employee of a private security company. Upon commencing his employment, Mr X was ordered by his employer to undergo a medical test at a local hospital in Abuja. He was given written instructions in a sealed envelope for the healthcare worker. Acting on this instruction and fearful of risking his employment, he submitted himself with the sealed instructions to the hospital where he was examined and subjected to a number of tests. He was not informed of the nature of the tests nor was consent sought by the relevant healthcare workers.
Mr X was given a medical report to submit to his employer. He discovered upon reading the report that he had been subjected to an HIV test and was found to have tested positive for HIV. No certification of medical fitness for employment was issued by the hospital. Understanding the mandatory nature of the order from his employer, Mr X submitted the medical report to his employer. Ten days later he was verbally informed that his employment had been terminated. He was later informed that his employment had been terminated on the basis of his HIV-status. Despite submitting two subsequent letters from medical doctors attesting to his fitness to work, Mr X was not reinstated.
In an application to the Abuja Industrial Court, Mr X seeks declarations that his rights have been violated in terms of the Nigerian Constitution, the HIV/AIDS (Anti-Discrimination) Act, the Labour Act, and legislation incorporating the African Charter on Human and Peoples’ Rights into domestic law, amongst others. He argues that the law precludes him from being compelled to undergo HIV testing by an employer and that being compelled to test and subsequently dismissed violated his rights to dignity, privacy, his right to work and his right to freedom from discrimination. He further seeks constitutional and general damages and the payment of his salaries, allowances and entitlements. Mr X has further sought an order to secure his anonymity in the legal proceedings to prevent the further publication and disclosure of his HIV-status.
This case is being supported by SALC due to its participation in a 10-country regional grant (the Africa Regional Grant on HIV) which includes Nigeria. Nigeria is not a country in which SALC has traditionally worked. However we elected to provide assistance in this matter as a result of our involvement in this grant and our capacity in health rights expertise. SALC remains focused on its southern Africa mandate.