Verdict No Termination of HIV Infected

Federal Labor Court: HIV infection is not a reason for termination

21/12/2013

People infected with HIV should not be discharged for their illness alone. There was much praise for the verdict of the Federal Labor Court. The decision of the judges is even described as groundbreaking.

Equate to HIV infection with disability
The Federal Labor Court has strengthened the rights of HIV-infected people. On Thursday, the Sixth Senate in Erfurt (6 AZR 190/12) decided that they should not be released solely because of their illness. According to the Equal Treatment principles, an HIV infection is equated with a disability and the persons concerned are thus under special protection against discrimination. This also applies to the probationary period ... Therefore, expulsion due to HIV infection represents an immediate disadvantage and is therefore ineffective.

Appropriate arrangements for employment of HIV-infected persons
A chemical technician hired by a drug manufacturer to work in the cleanroom in 2010 sued after being fired. The employer had learned from the company doctor of his HIV infection and dismissed him during the probationary period. However, the chief labor judge did not decide on the claim of the dismissed, but referred the case back to the State Labor Court in Berlin. There, it would now be necessary to re-examine whether reasonable accommodation would have made it possible to employ HIV-infected persons.

Company doctor absolved from medical confidentiality
The plaintiff, who is infected with HIV but is not suffering from any symptoms, should produce drugs for the treatment of cancer given intravenously. Shortly after the start of his employment, the recruitment examination was scheduled for the company doctor. At this appointment, the chemical-technical assistant told the doctor about his illness. He voiced concerns, relinquished his medical confidentiality and told the employer about the infection. The man was then terminated on the same day. Since his work also required the handling of glass and aluminum lids, the company feared that he could hurt unnoticed. The judges found that while employers do not have to bear the risk of infection. However, by providing safety gloves and the like, they would have to make adequate provision for the employment of HIV-infected persons.

Poor implementation of the grand coalition ended
The verdict of the Federal Labor Court earned much praise. Carsten Schatz, board member of the German Aids-Hilfe (DAH) commented: „This is a good day for the rights of all who live with a chronic illness and a good day for people who take their interests into their own hands.“ The year-long procedure was avoidable. „The legal uncertainty due to the poor implementation of the EU Anti-Discrimination Directive and the UN Convention on the Rights of Persons with Disabilities by the Grand Coalition of the years 2005 to 2009 has ended today“, so honey.

Pioneering judgment
Discrimination protection agencies even described the Erfurt judgment as „pioneering“. The head of the Federal Anti-Discrimination Agency, Christine Lüders, said: „For a long time, HIV-infected people in Germany have been waiting for this decision.“ And Vera Egenberger, Managing Director of the Office for the Implementation of Equal Treatment in Berlin, sees a gray area eliminated and thus also strengthened the protection against discrimination of the chronically ill.

Important signal for jurisdiction in Germany
The court clarified that discrimination on the grounds of HIV infection is inadmissible, as is the difference in treatment based on gender or skin color, according to the UN Disability Convention Monitoring Agency. „The decision is an important signal for the jurisprudence in Germany: the General Equal Treatment Act as well as other laws must be understood in the light of the UN Convention on the Rights of Persons with Disabilities“, said Valentin Aichele, head of the UN Convention on the Rights of Persons with Disabilities. It is good that the court referred to the principle of reasonable accommodation.

Nationwide 78,000 HIV-infected
By the end of 2012, according to estimates by the Robert Koch Institute (RKI), around 78,000 people were infected with HIV nationwide. Throughout Germany, there were more than 3,400 new infections last year. About 550 people died in Germany in the past year as a result of AIDS. (Ad)