I.B. v. Greece

The applicant was an HIV-Positive Greece national who had been working in a jewelry manufacturing company, the staff of which urged their employer to dismiss the applicant so that their health and their right to work could be protected. The employer invited an occupational-health doctor who spoke and reassured the employees by explaining the precautions to be taken. The employees, however, sent to their director a letter for the applicant’s dismissal. The employer dismissed the applicant on 23 February 2005 paying him the allowance provided under Greece law.

The applicant brought his case before the Athens Court of First Instance which held that the dismissal was illegal on the ground that the termination of the employment contract was based only on the applicant’s health status. The Athens Court of First Instance also held that the employer abused its powers as it had mistakenly believed the issue was about creating peaceful working relations within the company. The Court of First Instance found it unnecessary for the applicant to be reinstated as he had already found another employment at the time. The employer and the applicant appealed from the judgment on 29 January 2008.

The Court of Appeal acknowledged the employer’s reaction with to preserve a good working environment within the company. The court of Appeal held that the fears of the company’s employees were scientifically unfounded as a professional explanation was provided to them. The Court of Appeal held that where an employee’s illness did not have a negative impact on the employment relationship or the smooth functioning of the company (such as absenteeism, reduced capacity to work), illness could not justify the termination of an employment contract. The Court of Appeal also held that the applicant’s health could not have had a negative effect on the smooth functioning of the company in the future.

The applicant appealed to the Cassation Court on the ground that the Appellate Court wrongly dismissed his request to be reinstated in his job in the company. On 17 March 2009, the Cassation Court quashed the Court of Appeal’s judgment and held that the termination of an employment contract was not wrong as it was justified by the employer’s interests of restoring harmonious collaboration between employees or the company’s smooth functioning. The Cassation Court dismissed the applicant’s appeal on points of law.

On 2 December 2009, the applicant lodged a claim to the European Court of Human Rights (the ECHR) alleging that his right to respect for private and family life under Article 8 the European Convention on Human Rights and the prohibition of discrimination as provided under Article 14 of the same had been violated since the Court of Cassation had found his dismissal justified because he was HIV positive, and that it could not have been a basis for a unequal treatment.

The ECHR found that the need to protect the employer’s interests should have been carefully balanced against the need to protect the interests of the employee, who was the weaker party to the contract, especially being HIV-positive. The ECHR held that the Cassation Court failed to weigh up these competing interests and that the Cassation Court erred when it based its decision on the employees' subjective and erroneous perception of smooth functioning of the company.

The ECHR also held that the Cassation Court had not provided an adequate explanation of how the employer’s interests outweighed those of the applicant and had failed to strike a correct balance between the rights of the two parties. The ECHR found that the applicant had been a victim of discrimination on account of his health status, in breach of Article 8 and Article 14 the European Convention on Human Rights, taken together.

Greece was to pay the applicant 6,339.18 euros (EUR) in respect of pecuniary damage and EUR 8,000 in respect of non-pecuniary damage.

(The contents of this summary were taken from the judgement of the case as issued in the press release by the Registrar of the ECHR on the date of the Chamber Judgment, 3 October, 2013)