PFG Building Glass (Pty) Ltd. (“Applicant”) tested its employees for HIV without the Labor Court’s authorization. Although the Applicant initially applied to the Court for an authorization order, it subsequently abandoned this claim. Instead, Applicant requested that the court declare that HIV testing of employees does not contravene section 7(2) of the Employment Equity Act 55 of 1998. Section 7(2) of the Act prohibits medical testing of employees to determine their HIV status, unless the Labour Court determines that the test is justiﬁable.
The issue in this case was whether HIV testing of employees without prior authorization from the Labour Court violates Section 7(2) of the Act.
The Court noted that the Act’s provisions must be interpreted in light of the Constitution of South Africa, the Act’s purpose, other relevant good practices, and obligations under international law. The right to security and bodily integrity, the right to privacy, and the right to not be subject to “medical or scientiﬁc experiments without informed consent” all apply to the testing of employees’ HIV status. Given the stigma and discrimination attached to a positive HIV status, employees’ right to privacy (Section 14 of the Constitution) is particularly important. The Court recognized, however, that an individual’s right to privacy and autonomy are not absolute. An employer’s right to information and to engage in a trade, occupation, or profession may justify reasonable limitations on employees’ rights to privacy and autonomy.
In order to achieve a fair balance between competing rights, the employer may limit employees’ rights to privacy, dignity, and equality only so far as is necessary to achieve the legitimate objectives of testing for a devastating disease. In other words, the data collected in the testing should be used only for the management of the enterprise in relation to the impact of HIV on the workforce. The Act clearly indicates that HIV testing may not be used to unfairly discriminate against employees. As such, the purpose of the testing cannot be to determine the HIV status of a specific employee, except in cases where the nature of the work requires an employee to be HIV negative. The Court recognized that preserving anonymity is central to the avoidance of workplace discrimination based on HIV status. In the case at hand, the HIV testing of employees was anonymous. The risk of discriminatory conduct ﬂowing from the test results is thus minimal.
The Court granted the applicant’s request, because the testing would be conducted anonymously and voluntarily.