CEDH · CASELAW;CLIN;ENG — 3 octobre 2013

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Greece - 552/10 Judgment 3.10.2013 [Section I] Article 14 Discrimination Dismissal, as a result of pressure from colleagues, of employee suffering from HIV infection: violation   Facts – In February 2005, while he was on annual leave, the applicant learned that he had contracted the human immunodeficiency virus (HIV). This news spread throughout the company in which he was employed. Members of staff began to complain to the employer about having to work with a person who was HIV-positive and called for his dismissal. The applicant’s employer then invited an occupational doctor to visit the workplace to explain the HIV infection, and its means of transmission, to the staff. The doctor tried to reassure the employees and explained what precautions should be taken. Nonetheless, about half of the staff sent a letter to the applicant’s employer, calling for his dismissal in order to “preserve their health and their right to work”, and stating that the harmonious atmosphere which reigned in the company was likely to deteriorate if he remained. Two days before the applicant’s return from leave, the employer dismissed him, while paying the allowance provided for under Greek law. The applicant applied to the courts. Overturning the judgment of the court of appeal, the Court of Cassation held that the applicant had not been unfairly dismissed. Law – Article 14 in conjunction with Article   8 (a)     Applicability – The applicant complained that the authorities had failed to protect his private sphere against interference by his employer, which could engage the State’s responsibility. There was no doubt that issues concerning employment and situations involving persons with HIV came within the scope of private life. The present case had a particular feature: the dismissal of an HIV-positive employee. There was no doubt that, while the reason given for the applicant’s dismissal had been the preservation of a harmonious working environment in the company, the trigger had definitely been the news of his positive HIV status. It was this event which had resulted in the employees’ open threat to disrupt the company’s operations so long as the applicant continued to be employed there. It was clear that his dismissal had resulted in stigmatisation of an individual who, although HIV-positive, had shown no symptoms of the disease. This measure could not fail to have serious repercussions on his personality, the respect which was shown to him and, ultimately, on his private life. Mention had also to be made of the uncertainly arising from the search for new employment, as the prospects of finding a new job could reasonably be considered remote, given his experience with his existing employer. The fact that the applicant had found new employment following his dismissal was not sufficient to eliminate the damaging effects that the impugned events had had on his ability to lead a normal personal life. Articles   8 and 14, taken together, were therefore applicable. (b)     Merits – The applicant’s situation had to be compared to that of the company’s other employees, since this was what was relevant in assessing his complaint of a difference in treatment. It was undisputed that the applicant had been treated less favourably than another colleague would have been, solely on the basis of his HIV-positive status. In its judgment in Kiyutin v.   Russia , the Court had held that ignorance about how this disease spreads had bred prejudices which, in turn, stigmatised or marginalised those who carried the virus. It therefore considered that people living with HIV were a vulnerable group with a history of prejudice and stigmatisation and that the States should be afforded only a narrow margin of appreciation in choosing measures that could single out this group for differential treatment on the basis of their HIV status. However, the applicant’s employer had terminated his contract on account of the pressure to which it was subjected by certain employees, and this pressure had originated in the applicant’s HIV status and the concerns that it had given rise to among those persons. Furthermore, the company’s employees had been informed by the occupational doctor that there was no risk of infection in the context of their working relations with the applicant. The court of appeal had expressly recognised that the applicant’s HIV-positive status had no effect on his ability to carry out his work and there was no evidence that it would lead to an adverse impact on his contract, which could have justified its immediate termination. It had also recognised that the company’s very existence was not threatened by the pressure exerted by the employees. The employees’ supposed or expressed prejudice could not be used as a pretext for ending the contract of an HIV-positive employee. In such cases, the need to protect the employer’s interests had to be carefully balanced against the need to protect the interests of the employee, who was the weaker party to the contract, especially where that employee was HIV-positive. However, the Court of Cassation had not weighed up the competing interests in such a detailed and in-depth manner as the court of appeal. In reasoning that was relatively short, given the importance and unprecedented nature of the issues raised by the case, it held that the dismissal had been fully justified by the employer’s interests, in the correct sense of that term, since it had been decided in order to restore calm within the company and ensure its smooth operation. While the Court of Cassation had also not disputed the fact that the applicant’s illness had no adverse effect on the fulfilment of his employment contract, it had nonetheless based its decision, in justifying the employees’ fears, on clearly inaccurate information, namely the “contagious” nature of the applicant’s illness. In so doing, it had ascribed to the smooth functioning of the company the same meaning which the employees wished to give it, and had aligned it with the employees’ subjective perception of that issue. Finally, the only issue at stake for the applicant before the Court of Cassation was the compensation he had been awarded by the court of appeal, as his initial request to be reinstated in his post had been dismissed by both the first-instance and appeal courts. Moreover, the Court could not speculate as to what the attitude of the company’s employees would have been had the Court of Cassation upheld the findings of the lower courts in this case, or, in particular, had there existed in Greece legislation or well-established case-law protecting HIV-positive individuals in their workplace. In conclusion, the Court of Cassation had not provided an adequate explanation as to how the employer’s interests outweighed those of the applicant, and had failed to weigh up the rights of the two parties in a manner consistent with the Convention. Conclusion : violation (unanimously). Article 41: EUR 8,000 in respect of non-pecuniary damage; EUR 6,339.18   in respect of pecuniary damage. (See Kiyutin v. Russia , 2700/10, 10   March 2011, Information Note   139 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes