A Kenyan public university must pay a former lecturer Kshs 2.5m in compensation. The HIV and AIDS Tribunal ruled that his rights were violated through forced HIV testing, unauthorised disclosure of his health status, and unlawful dismissal.
The lecturer, whose identity remains confidential, was employed by the institution in 2007 and initially enjoyed a cordial working relationship with his employer. However, this changed drastically after his only child died in August 2012, following his wife’s death in 2007, both from HIV/AIDS-related complications.
According to court documents, a group of university staff and senior officials launched a smear campaign against the lecturer shortly after the tragic event.
The campaign led to increased scrutiny and discrimination based on his perceived HIV status. The Head of the University’s Health Unit allegedly coerced the lecturer into undergoing multiple HIV tests, despite his objections. The lecturer submitted negative test results from both Aga Khan and Guru Nanak hospitals, yet the employer dismissed these as fraudulent. The rejection of his test results, he said, caused significant emotional distress, impacted his mental health, and undermined his job performance.
In June 2021, the lecturer’s employment was terminated. During the tribunal hearing, he asserted that the university used its position of authority to intimidate him into HIV testing, something he insisted was against the law, particularly when linked to job security.
The HIV and AIDS Tribunal agreed with the lecturer, noting that the employer had breached Section 13(2)(a) of the HIV and AIDS Prevention and Control Act by compelling an HIV test as a condition of employment. The tribunal further established that the university had contravened Section 22 of the Act by disclosing the lecturer’s HIV status, whether actual or perceived, to third parties without his consent.
In its ruling, the Tribunal awarded the Claimant a total of Kshs 2,500,000, broken down as follows:
- Kshs 400,000 for being compelled to undergo HIV testing without proper consent.
- Kshs 500,000 for the unlawful disclosure of his status.
- Kshs 1,600,000 for emotional and psychological trauma resulting from stigma and discrimination, which also included exemplary and punitive damages.
The tribunal underscored that HIV status is a private matter and that its disclosure, particularly without consent, can inflict severe mental and emotional harm. It criticised the university’s disciplinary committee for recommending that the lecturer’s confidential medical records be obtained to determine his need for counselling.
The ruling serves as a strong reminder to employers, especially public institutions, that the law protects individuals with HIV or perceived to have it, and that any breach of confidentiality or discrimination will face legal consequences.
