[2021] KEHAT 86 (KLR)

[2021] KEHAT 86 (KLR)

The Tribunal found that the Claimant did not give informed consent for HIV testing, as signing the attendance form did not meet the legal standard for consent under HAPCA. The Respondent, through its agent, was vicariously liable for the testing and subsequent unlawful disclosure of the Claimant’s HIV status to...

Source-derived case information.

Citation
[2021] KEHAT 86 (KLR)
Parties
Claimant: BAO; Respondent: China Henan International Co-operation Group Co. Ltd
Court
HIV and AIDS Tribunal
Jurisdiction
Kenya
Case Number
Tribunal Case 6 of 2021
Procedural Posture
Civil Suit / Judgment
Outcome
Judgment for the Claimant. Damages awarded for lack of informed consent, unlawful disclosure, and emotional distress. Costs and interest granted.
Legal Topics
Hiv Testing in Employment, Workplace Discrimination, Privacy and Confidentiality, Vicarious Liability, Emotional Distress Damages
Source Language
en
Employment and Labour Tort Law Civil Procedure Hiv Testing in Employment Workplace Discrimination Privacy and Confidentiality Vicarious Liability Emotional Distress Damages

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Parties

BAO

Claimant

China Henan International Co-operation Group Co. Ltd

Respondent

Procedural Posture

Civil Suit / Judgment

  1. 1 Whether the Claimant was compelled to undergo HIV testing without her informed consent.
  2. 2 Whether the HIV test was preceded by pre-test counselling and followed by post-test counselling as required by law.
  3. 3 Whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without her consent.

Ratio Decidendi

The Tribunal found that the Claimant did not give informed consent for HIV testing, as signing the attendance form did not meet the legal standard for consent under HAPCA. The Respondent, through its agent, was vicariously liable for the testing and subsequent unlawful disclosure of the Claimant’s HIV status to third parties. The Tribunal accepted the audio recording and the context of the Respondent’s offer to settle as evidence of admission of wrongdoing. Although the Claimant’s summary dismissal was officially for absenteeism, the Tribunal recognized that the unlawful disclosure and resulting stigma likely contributed to her absence and loss of employment. The Respondent’s actions...

Court Disposition

Judgment for the Claimant. Damages awarded for lack of informed consent, unlawful disclosure, and emotional distress. Costs and interest granted.

Orders

  • The Respondent shall pay the Claimant KES 250,000 as damages for conducting an HIV test without informed consent.
  • The Respondent shall pay the Claimant KES 500,000 as damages for unlawful disclosure of HIV status to third parties.