No, an employee may not be dismissed, demoted or passed up for a promotion based on their HIV/AIDS status. If the HIV/AIDS status of an employee is known, the employer and co-workers of that employee may not victimise the employee under any circumstances.Ĭan you be dismissed based on your HIV/AIDS status? An employee’s personal information relating to his/her HIV/AIDS status must be bound by rules of confidentiality. If an employee has voluntarily disclosed his/her HIV/AIDS status, the employer and/or co-workers may not disclose this information without the express written consent of the employee concerned. If your employer or co-worker knows about your HIV status, can they disclose it to someone else? This means that as a general rule, employees and job applicants are not required to disclose their HIV/AIDS status to their employer or even their co-workers. No, the Code of Good Practice highlights the fact that everyone, including HIV/AIDS positive people, has the right to privacy. The Constitutional Court found that the employer’s refusal to hire Hoffman infringed on his right to human dignity and constituted unfair discrimination.ĭo you have to inform your employer about your HIV status? ![]() In the Hoffman-case, the employer had refused to employ Hoffman because he was HIV positive. One of the leading cases is that of Hoffman v South African Airways (CCT17/00) (2000) ZACC 17 where the Constitutional Court made it clear that employers may not discriminate against employees, as well as prospective employees, on the basis of their HIV/AIDS status. The Code of Good Practice not only applies to employees, but also to interns/apprentices, volunteers, job applicants and laid-off or suspended employees.īoth the Employment Equity Act and the Code of Good Practice have been referred to in court cases relating to HIV/AIDS in the workplace. The Department of Employment and Labour published the Code of Good Practice on HIV/AIDS and the world of work (“Code of Good Practice”) to address key aspects of HIV/AIDS in the workplace in support of the Employment Equity Act. The Employment Equity Act further explains that this protection from discrimination is also extends to job applicants and is not just limited to employees. However, the Employment Equity Act provides for the necessary protection and specifically states that no person may unfairly discriminate against an employee on the basis of his/her HIV/AIDS status. The right to equality also includes not to be discriminated against, directly or indirectly, based on race, gender, pregnancy, marital status, ethnic or social origin, age, disability and so on.Īlthough the Constitution is the basis for protection against unfair discrimination, it does not specifically list a person’s HIV/AIDS status as one of the prohibited grounds of discrimination. What laws protect against HIV/AIDS discrimination in the workplace and does it only apply to employees?Īs the highest law in South Africa, section 9 of the Constitution provides that everyone has the right to equality which includes to be treated equally and to receive equal protection of the law. This article will address some of the frequently asked questions on HIV/AIDS in the workplace. It is important to highlight that those infected with HIV/AIDS have the same rights as everyone else, particularly in the context of the workplace where they are highly prone to discrimination due to their HIV/AIDS status. Despite widespread awareness and great medical advancements in this field, those infected with HIV/AIDS still face discrimination due to their HIV/AIDS status. South Africa has one of the highest HIV/AIDS infection rates in the world and most of us are affected by this longstanding pandemic, either in a direct manner or indirectly.
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