THE EFFECTS OF THE EMPLOYEE’S INFECTION WITH HIV/AIDS DISEASE ON THE EMPLOYMENT CONTRACT
HIV/AIDS, which is still one of the most important public health problems today, is recognised as an important intersection point of gender, law, security and human rights beyond being a health problem. Although individuals living with HIV can take part in working life thanks to effective treatment methods, they may be exposed to social stigma and discrimination due to HIV, which is still a problem that has not been overcome in the world.
In this study, the issues of whether the employment contracts of employees with HIV/AIDS can be terminated on the grounds of the disease in question will be examined within the framework of both Supreme Court decisions and doctrinal opinions.
1.WHAT IS HIV/AIDS?
AIDS (Acquired Immune Deficiency Syndrome, “Acquired Immune Deficiency Syndrome”) is a disease caused by a virus called HIV. HIV stands for Human Immunodeficiency Virus. The HIV virus is a virus that affects the healthy functions of the human immune system and weakens it, and when the immune system is severely impaired due to the invasion of this virus, the body becomes resistant to a number of diseases.
AIDS seriously undermines the body’s self-healing mechanisms and renders the body resistant to infections. The World Health Organisation considers AIDS to be a pandemic disease.
Although HIV is widely known to be a sexually transmitted infection, it can also be spread through contact with blood and from mother to child during pregnancy, childbirth or breastfeeding. Unlike many infectious diseases, HIV/AIDS is not transmitted through air, food or normal contact. In other words, the HIV virus cannot be transmitted by shaking hands or hugging. Without treatment, it can take years for HIV to weaken the immune system and turn into AIDS. It is estimated that approximately 34 million people in the world today are living with HIV. Although there is no cure for HIV/AIDS, there are medicines that can significantly slow down the progression of the disease. These drugs significantly reduce AIDS deaths in many developed countries.
2.NATIONAL AND INTERNATIONAL PERSPECTIVE ON HIV/AIDS
After HIV/AIDS started to become an epidemic, discussions on ethical and legal issues emerged and relevant international organisations and states started legislative studies on the subject. As a reflection of this, the International Advisory Committee on HIV/AIDS and Human Rights, which met in 1996, prepared the “International Guidelines on HIV/AIDS and Human Rights”.
The International Labour Organization (ILO), on the other hand, listed the steps to be taken to ensure that people living with the HIV virus do not face discrimination in working life in the “ILO Code of Practice and Conduct on HIV/AIDS and Working Life” document dated 2001 (“ILO 2001”). According to this document, it was decided to put HIV/AIDS on the agenda as a problem related to working life.
According to ILO 2001 Article 4/1, “HIV/AIDS is a work-related problem and should therefore be approached in the same way as any other serious work-related disease/condition. Such an approach is necessary not only because the problem affects the workforce, but also because it is important for the workplace, which forms part of the local community. Indeed, the community has an important role to play in preventing the spread of the epidemic and mitigating its effects.” Article 4/2 of ILO 2001 on discrimination, within the framework of the work principle of “decent work with human dignity”, states that “In accordance with the principles of decent work and due regard for the human rights and dignity of people with HIV/AIDS, workers should not be discriminated against on the grounds of actual or perceived HIV infection.”
Among the recommendations of the ILO are that HIV testing should not be requested from job applicants or current employees, that employees are not obliged to provide such information to employers or other relevant persons, that HIV infection should not be a reason for dismissal, that governments should include working life in their national HIV/AIDS programmes and that governments should take all necessary steps to ensure that people living with HIV can fully benefit from the protection and assistance provided by social security and vocational programmes.
Within the scope of national legislation, legal experts who have examined the legislation regulating working life in Turkey have concluded that there is no discrimination against persons living with HIV infection in the legislation.9 In addition, Turkey has signed the UNGASS HIV/AIDS Declaration, thus committing to work for “the promotion of human rights in the fight against AIDS and the prevention of stigmatisation and discrimination against persons living with HIV”.
According to Article 48 of the Constitution of the Republic of Turkey, “Everyone has the right to freedom of labour and contract in the field of his choice.” Pursuant to this article, the state is obliged to protect workers in order to improve the quality of life of workers and to improve working life. For this reason, no one, including people living with HIV/AIDS infection, should be subjected to any discrimination in the workplace, and in this context, the state is under the obligation to protect all employees from discrimination.
3.CAN AN EMPLOYEE’S EMPLOYMENT CONTRACT BE TERMINATED ON THE GROUNDS OF HIV/AIDS?
In practice, it is observed that the termination for just cause provisions in Articles 24 and 25 of the Labour Law No. 4857 (“Labour Law”) are used as grounds for discriminatory practices.10 These provisions appear as situations where the employment contract can be terminated by the employee and the employer before the expiry of the term or without waiting for the notice period for health-related reasons.
Accordingly, it is possible to terminate the employment contract immediately in the event of “contracting a contagious disease or a disease incompatible with the work of the employee” and in the event that it is determined by the health committee that the disease is incurable and that it is inconvenient for the employee to work at the workplace.
However, in a dispute where an employee with HIV infection was terminated on such grounds, the Court of Cassation determined that there was a discriminatory practice.
In the aforementioned Court of Cassation decision; “The employer terminated the employment contract of the plaintiff employee, who was working on the production line in the bakery products manufacturing workplace, based on the medical board report stating that “he could not work in heavy work and there was no obstacle to work in normal work”, in accordance with Article 25 of the Labour Law. However, even in this case, termination should be a last resort and it should be investigated whether there is a job in the workplace where the plaintiff employee can work. “11
Similarly, in the T.A.A. application, the Constitutional Court (“CC”) examined the allegations of violation of the right to protection of material and moral existence, the right to respect for private life and the principle of equality due to the termination of the employment contract of the HIV positive worker. The Constitutional Court examined the applicant’s claim that the aforementioned rights were violated due to the rejection of the lawsuit filed by the applicant for discrimination compensation, and assessed that the applicant was treated differently in a negative sense. According to the Constitutional Court, although it can be argued that the different treatment in question is a more favourable and even advantageous treatment that is not applied to any of his colleagues, considering that the applicant’s wages were paid to him during the period when he was not employed and his legal receivables were paid to him when he left the job, the Constitutional Court pointed out that the applicant, who needed a continuous and regular income to cover his lifelong treatment, lost his job from which he obtained this income, not for the legal reasons specified in the Labour Law, but because he was HIV positive.
The Constitutional Court stated that the applicant’s suspension from the workplace was envisaged as a solution to prevent this risk from materialising by focusing on the “contagious” nature of the disease and evaluated whether the employer had an obligation to evaluate whether the applicant should be employed in another position that would not pose a risk to other employees.
In this context, although there were statements, evaluations and expert reports in the direction that the applicant could be employed in another position, the employer did not make any assessment as to whether there was such another position at the workplace and, if so, whether the applicant’s qualifications were sufficient for the position in question. The Constitutional Court also concluded that a fair balance was not established between the conflicting interests of the applicant and the employer, since the courts of first instance did not evaluate the obligation to examine alternative job opportunities at the workplace. As clearly stated by the Constitutional Court, all these issues must be taken into consideration in the proceedings conducted by the courts of first instance within the scope of positive obligations.
As a result, it was concluded that the public authorities did not fulfil their positive obligations in terms of the right to protection of the material and moral existence of the person and the right to respect for private life, firstly because the applicant’s claim that he was unfairly forced to leave his job was not examined at all in the first instance court decisions, and secondly because there was no evaluation of the obligation to examine alternative job opportunities at the workplace, and it was decided that the applicant’s right to protection of material and moral existence and the right to respect for private life were violated.”
However, although the Constitution of the Republic of Turkey obliges the state to take measures to protect and empower disabled citizens, it is a matter of debate whether HIV status should be considered within the scope of disability. In the doctrine, it is argued that HIV status can also be considered within the scope of disability, since living with HIV causes various obstacles in daily life, even if it does not lead to being sick.
4.CONCLUSION
In Turkey, it is observed that employees living with HIV are in an unequal and unprotected situation in working life. The main situations in which employees are denied the right to work due to their HIV status may arise in the form of termination of the employment contract by the employer, either directly or for other reasons, or by presenting HIV testing as a prerequisite for recruitment.
Among its recommendations, the ILO has stated that HIV testing should not be requested from job applicants or existing employees, and that employees are not obliged to provide such information to employers or other relevant persons.
Although this study tries to examine the human resources and labour law effects of HIV status on the employee’s employment contract, it should not be forgotten that HIV information is personal health information, that is, sensitive personal data, within the scope of the Law No. 6698 on the Protection of Personal Data (“KVKK”). Sensitive personal data can only be processed with the explicit consent of the person, with exceptions. Proportionality, which is one of the basic principles that should be included in the processing of personal data, is the establishment of a reasonable balance between the data processing activity and the purpose to be achieved, and the extent of data processing to achieve the purpose.
In this respect, it should not be forgotten that personal data that is not necessary for the realisation of the personal data processing activity should not be collected and / or processed, data processing that is not necessary for the purpose should be avoided, even if the processing of personal data is carried out based on the consent of the data subject and depends on a specific purpose, explicit consent will not legitimise unproportionate data processing, and if the HIV information of the person is to be processed in the relevant processes, these situations should be considered. For example, trying to obtain the HIV information of the person in any way in job applications will undoubtedly violate the principle of proportionality and will not be valid even if consent is obtained. In addition, it should not be forgotten that in order for HIV information obtained in any way, with or without consent, to be processed in accordance with the law, adequate measures determined by the Personal Data Protection Board must be taken.
In addition, although there is no special regulation for persons living with HIV infection in our country, the rights of employees with HIV infection have been protected in the decisions of the Constitutional Court and the Court of Cassation, and it has been ruled that the termination of employment contracts is not based on justified grounds, and if there is the possibility of employing such employees in different positions in the workplace, they should be allowed to work in these positions and the principle of last resort of termination has been referred to.
As stated in both the Court of Cassation and the Constitutional Court decision, there is a conflict between the benefits to be obtained by the employer in maintaining peace and discipline in the workplace within the framework of the rules set by the employer to protect other employees and to protect the employees’ rights to respect for private life, protection and development of material and moral existence. For this reason, a careful balance must be struck between the interests of the employer and the interests of the employee, who is the weaker party to the employment contract and who is in the weak group of society due to being AIDS/HIV positive.
