The following is an excerpt from an article submitted by the Current Affairs Committee of the Institute for Policy Research & Legal Studies.

In recent times there has been resurgence in the debate about whether an employer has the "right" to test a potential employee for HIV before offering employment.

The legal position on this in Jamaica is very clear: The employer has no such legal right. There is no law which gives a prospective employer a legal right to ask the potential employee to submit to a test for HIV before offering employment. However, while the employer has no such right under the general law, it is the prospective employer's private prerogative right.

As a business owner/operator the potential employer has a right to set the terms of employment (a proprietary right) and he alone can dictate the conditions which must be satisfied by the potential employee in order to qualify for a job.

ethical and legal obligations

If, as a pre-condition to an offer of employment, the potential employer requires the potential employee to undergo screening for HIV (or any other illness), then that is a factor within the exclusive right of the employer. Insisting on pre-employment screening for HIV is no different from insisting that the potential employee has a master's degree or a particular technical skill.

If the potential employee does not satisfy the conditions which have been set by the potential employer, he has no remedy. There was never any legal relationship between him (the potential employee) and the potential employer and therefore the potential employer has not breached any duty in law. Whether the potential employer has acted ethically is a totally different matter and ethical and legal obligations are worlds apart.

This private right really translates itself into an engagement of economic power: the prospective employee typically having very little power and the employer having much more economic power and clout to dictate the terms of the engagement including mandatory testing for HIV.

The effect of this however is to discriminate against the prospective employee who may satisfy all other conditions and who may otherwise be qualified to do the job in question.

Given this reality what should the policy makers in Jamaica have done to remedy the situation (which is obviously being abused)?

Clearly, employers are aware of their legal right and they are aware that they have not breached any legal rules or trespassed against any rights of the potential employee. In circumstances such as these, what is needed is strong anti-discriminatory legislation which would cover a wide area of discrimination. This would give the potential employee some measure of redress if he/she is refused a job which he/she would be otherwise qualified for.

no anti-discriminatory laws

Unfortunately, Jamaica does not at present have anti-discriminatory laws and the only provision in the Jamaican Constitution which deals with discrimination relates to discrimination by public bodies. A private individual is free to discriminate on any ground without sanction. This is likely to be addressed however, when the Charter of Rights come into law. However, the proposed Charter of Rights does not address many of the social grounds on which discrimination can potentially arise. Example, the Charter does not address discrimination based on health status (which is what is happening now to persons who are denied employment if (a) they refuse to submit to pre-employment screening for HIV or (b) if they are found to be HIV positive before being offered employment).

interest groups

The interest groups and the community of persons living with HIV need to mount a very strong lobby to have the legal framework modified (modernised) to take into account the new social realities and to penalise those employers who insist that a person disclose his/her HIV status as a pre-condition to being offered employment.

It is useless to argue the obvious with the potential employer. The obvious is this: taking an HIV test merely provides a snap-shot of a particular period of time. The potential employee can take the test this minute (returning a negative result) and the very next minute engages in unprotected sexual intercourse and contract the HIV virus. The fallacy of insisting on testing before employment is too obvious, but so entrenched is the position of the employer that he is blinded by the error of his ways.

The only why to expunge this useless and backward practice from labour relations is to have legal measures in place to restrict the employer's freedom, which if left unchecked is likely to cause the Jamaican taxpayers quite a bundle. Why? Denying a job to someone (his/her HIV status apart) who is otherwise capable of working means that this individual (and perhaps even his/her dependents) are likely to become a charge on the treasury.

workplace policies

The Ministry of Health and the National HIV Response Mechanism have done quite a lot in terms of sensitisation and development of workplace policies. However, policies are mere guidelines and they impose no sanction for breach. The policy is often a good place to start when behaviour change is required. Ultimately however, self-regulation has its drawbacks and so the community of persons living with HIV (who by the way are too silent in Jamaica) should seek support to have stronger measures put in place to curb this practice. The work cannot be left to the Ministry of Health. HIV is a social phenomenon not a health issue. It produces some health issues but more than anything else, it is a social disease and must be tackled from this front.

discriminatory practices

Advocacy to make illegal discriminatory practices based on health status by the way should not be limited to HIV because the law must be a living instrument and should be capable of addressing new and emerging situations. Any lobby mounted should ask for penalties for discrimination based on a person's 'health status' (which is wide enough to cover most chronic illnesses in existence or which may arise).

What about persons who are already employed?

If the contract of employment makes it a condition of continued employment that the employee should be able to maintain a particular sero-status, then generally speaking, if the employee fails to abide by those terms, then there would arise grounds for dismissal. If however, the contract is silent on these issues (and it is not reasonable to imply it into the contract), then an employee who is dismissed for refusing to submit to HIV screening would have a claim for unfair dismissal.

A claim in Jamaica for unfair dismissal however has its limitations, chief of which is the fact that the remedy available at common law to the dismissed employee does not include re-instatement. There has been no local case yet decided by the Jamaican courts on the matter of wrongful dismissal in the above circumstances.

The Institute for Policy Research & Legal Studies is an independent think-tank that provides teaching of the University of London Law Degree in Jamaica and is engaged in research and advocacy on public policy, social and legal issues. E-mail comments to: iplsjamaica@gmail.com.