Organisation Internationale de Droit du Développement

Egypt's landmark court decision on HIV discrimination

In 2015, Ahmed* was dismissed from his job as a plumber in a Giza club when his employer discovered he was infected with HIV. In February 2016, in a landmark decision for Egypt and the Arab region, an Egyptian court ruled that HIV infection was not grounds for dismissal under the Labor Code (No.12 of 2003). The ruling is considered a significant achievement for human rights activists and legal professionals working to advance the rights of persons living with HIV.

The decision has been welcomed by civil society and international development organizations engaged in the response to HIV and AIDS in Egypt, and the Middle East and North Africa region more widely.

“This is the first court decision of its kind in Egypt, and possibly the region,” noted Dr Youssef Awad, Chairman of the Al Shehab Foundation for Comprehensive Development, an Egyptian non-governmental organization, which defends the legal rights of people with HIV to acess work, education, and accommodation without discrimination. Ahmed sought assistance from the Al Shehab Foundation in pursuing legal action.

“We have been waiting many years for an Egyptian court to affirm the right of people living with HIV to work without discrimination. Now the court has recognized that this person poses no threat at all to his work colleagues or anyone else at his workplace merely because he is living with HIV. Therefore, he has the right to work without discrimination,” continued Dr. Awad.

Al-Shehab’s lawyers received technical and financial support from IDLO for this case. “The court decision affirming the right of people living with HIV to work is consistent with relevant international legal frameworks,” noted David Patterson, IDLO’s senior legal expert for health. “These include the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities.”

Strategic Litigation

From the outset, it was recognized that the provision of HIV-related legal services to individuals would not significantly reduce HIV incidence and the impact of AIDS at national level if the focus remained on the individual alone.  Systemic change is needed to strengthen the enabling legal and policy environment for the national HIV response, and Human rights (the enabling legal environment) has been identified by UNAIDS as a ‘critical enabler’ of the HIV response.

Law reform through parliamentary processes can be slow and could also result in the unexpected.  But, the law can change in another way, however – through strategic litigation. A favourable court decision can well influence future decisions, such as in common law countries, where the decisions can be binding.  However, it must be noted that this is not the case in the civil law jurisdictions of countries in the Middle East and North Africa region (MENA) and Latin America.

It is clear that IDLO’s activities and efforts at strategic litigation to achieve HIV-related public health goals are having an important effect in expanding access to legal services and improving the legal environment for people with HIV.  These initiatives are clearly impacting on the lives of individual lives and government policy that have both national and global bearing.

Government policy reforms can also result from advocacy and the IDLO project gave voice to people living with HIV and key populations in structured interactions with government, which resulted in incremental improvements in the policy environment in some countries.

IDLO has provided technical and financial support to strengthen the legal response to HIV and AIDS in Egypt since 2009, with the support of the Ford Foundation and the OPEC Fund for International Development (OFID). During this time, IDLO has worked closely with UNAIDS, through a Memorandum of Understanding, to expand HIV-related legal services and rights in the region.  UNAIDS, the joint UN program of which the International Labor Organization (ILO) is also a member, has been championing the centrality of human rights and law to national, regional and global responses to HIV and AIDS, and issued the International Guidelines on HIV/AIDS and Human Rights. The Guidelines specifically indicate legal services for people living with HIV and key affected populations as part of the national response. This case drew interest from IDLO partners in the region, as it recognizes work as a basic right, regardless of health conditions.

The Director of the ILO Decent Work Team for North Africa, Peter Van Rooij, observed that ‘the decision is compliant with ILO Recommendation 200,' which is the first international human rights instrument to focus explicitly on HIV and AIDS and the World of Work, adopted by governments, employers’ and workers’ representatives from ILO member States, including Egypt, in 2010. In particular the Recommendation 200 establishes that real or perceived HIV status is not a valid reason justifying dismissal of a worker.

Dr Yamina Chakkar, UNAIDS Regional Director for Middle East and North Africa, also welcomed the outcome and commended the joint efforts that led to the court ruling. ‘It is consistent with UNAIDS guidance, the Arab AIDS strategy, and the guidance of Egypt’s National AIDS Program,’ she noted.

This breakthrough ruling has potential to set important legal precedence for future cases brought forth in Egyptian courts, as it affirms the defense and protection of basic human rights for all Egyptian citizens, including the right to work.

*Name has been changed