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Case law: Do you need the Labour Court to approve anonymous and voluntary HIV tests in your company?

by , 21 January 2014
Want to find out if you need the Labour Court to approve anonymous and voluntary HIV tests in your organisation? If so, read on as we give you a real example of how the courts have ruled on this matter.

The simple answer to the question above is, you don't need the authority of the Labour
Court to carry out voluntary HIV testing in your company.

Let's take a look at how the courts arrived at this decision.

Case law example: Do you need the Labour Court to approve anonymous and voluntary HIV tests in your company?

Irvin & Johnson Ltd v Trawler & Line Fishing Union & others (2003) 24 ILJ 565 (LC)

The Practical Guide to Human Resources Management explains that in the matter between Irvin & Johnson Ltd v Trawler & Line Fishing Union & others (2003) 24 ILJ 565 (LC,) the employer initiated a voluntary and anonymous HIV testing initiative for its employees.

Here are the facts of the case:

  • The company employed approximately 1 100 employees.
  • 752 of these employees were members of a trade union.
  • The employer wanted an order from the Labour Court that said the testing of employees didn't fall within Section 7(2) of the Employment Equity Act 55 of 1998, and that this testing was justified.

The findings

  • The law says an employer may do medical testing of employees. But they can't do this to check an employee's HIV status (Section 7 of the EEA);
  • A test isn't allowed if it'll permit an employer to check the HIV status of a particular employee;
  • The Court said that because the testing was both voluntary and unanimous, the Labour Court didn't have to decide if the testing was justified. So it didn't fall within Section 7(2) of the EEA; and
  • The employer didn't need the authority of the Labour Court to do the proposed HIV testing for its employees.

What can you learn from this case?

  • You don't need the authority of the Labour Court to do voluntary HIV testing in your company.
  • If an employee doesn't agree to the test, you can't test.

Now that you know what the law says regarding anonymous and voluntary HIV tests, make sure you comply.

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