Pre-Employment Medical Test, The Dangers ahead!

July 15, 2016, in what will be heralded as a first in the history of Nigerian employment and a major victory for the different interest groups championing the cause for better employment rights, the Honourable Justice Obaseki Osagie, at the National Industrial Court (NIC) Lagos, ruled in favour of an aggrieved employee that his dismissal from duty on the grounds of a positive HIV status amounted to a violation of his fundamental right to human dignity and freedom from discrimination. He was subsequently awarded general damages of 24 months gross salary and 1-month salary in lieu of notice.

Hitherto this judgment, the majority of employment contracts (even in multinationals, from origins that have established workplace discrimination policies) are conditional until the prospective job seeker submits to a medical test at an employer nominated hospital.

The lawsuit arose because the aggrieved employee’s line manager sent him on indefinite leave without pay upon the discovery of his status and all his solicitor’s attempts to dialogue with the employers were ignored. 

In addition to the damages awarded, the Court, also held that it was unlawful for a company to mandate its employees to undergo any form of medical test, as doing so would amount to an invasion of the employees right to privacy and flagrant disobedience of section 10 (6) of the Protection of Persons Living with HIV and Affected by Aids Law of Lagos State, 2007.

 Implications of the Judgement

• This means progress for employee rights, though enforcement remains the issue. In the coming days,  how this judgment impact jobs,  particularly those in the healthcare sector, where the role holders are required to undergo routine medical tests and examinations to remain in the clear to perform their duties, would need to be considered.

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• The judgment will also likely impact some company wellness initiatives currently being launched in organisations. Some of these initiatives require that employees submit to medical tests, which require biological samples.

• The days ahead will see a lot of offer letters and employee handbooks being updated because to maintain the status quo could be a tacit invitation of litigation from pressure groups, prospective employees and employees, who feel that they have been discriminated against on the basis of their health status.

• A further potential implication of the judgment is that an employer, who terminates an employment contract, on the basis of the payment in lieu of notice principle can still be subject to a discrimination lawsuit, especially, if the employee is able to tender reasons and evidence that the termination is not legitimate.  

• As more businesses struggle to make a profit in light of the inclement economic situation, redundancy, retrenchments, and light-sizing are likely to become difficult to implement.

• Apart from the quantifiable costs of litigation, there are the huge unquantifiable costs of the long term negative impacts on employee morale and devaluation of the employer brand.

What next?

Does this mean that employers have lost all their rights? No, this judgment will only demand more accountability from them. Termination remains a right that can be exercised but what is now critical is compliance with good practices, and accountability in a bid to ensure that employees are treated with dignity, consideration, and empathy, being the only ‘asset’ that has the ability to truly make a difference in an organisation. As important as the other assets (financial and physical), they require the intervention of a human being for their deployment towards the realization of the strategic intent for which they were acquired. In the final analysis, it would demand that systems and policies be created to safeguard human assets.

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The immediate and appropriate reaction for organisations would be to:

1. First assess the vulnerability of their current HR policies and practices in the context of this judgment

2. Prepare to issue new employment contracts or issue official correspondence obliterating any policies affected by the judgment and most importantly

3. Engage employees on ways of enhancing their employment experience.

Conclusion & remarks

 Based on this seminal judgment, the value of mandatory employment tests before the assumption of duty has become questionable, when considered in the light of the potential litigation risk to which a company could be exposed.

As judgments of the NIC can only be appealed on very limited grounds, it is expedient for the different employer consultative groups, to consult for guidance on how the judgment can be implemented in the interest of all stakeholders, taking into account the spirit and letter of the judgment.

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This judgment more than ever highlights the maxim that ignorance is not a defence and emphasizes the point that education about people management should be the responsibility of all levels of management. In the case of this landmark judgment, the line manager took the decision on behalf of the company to send the employee on indefinite leave. The outcome would have been different had there been sufficient awareness about employee rights and the presence of an empowered human resources organisation.  A renowned American businessman is credited to have said: ‘Human Resources isn’t a thing we do. It’s the thing that runs our business.”

The road ahead following this judgment is also not without challenges. There are grey areas to be considered and countless consultations to resolve some of the lack of clarity. For instance, given that it would appear that the judgement was anchored on Protection of Persons Living with HIV and Affected by Aids Law of Lagos State, it remains to be seen how the judgment would impact employment relations in states without similar legislation.

 This judgment requires courage for employers to desist from the old and for the employees to demand their rights. Most importantly it should hopefully spearhead the employment relationship becoming collaborative and mutually beneficial. 

The 2016 workplace discrimination judgment is a welcome change and hopefully, the same fate will befall the other biases on age, gender, tribe, religion and educational qualifications.

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