Release from employment in civil service due to HIV diagnosis

The Public Defender of Rights was approached by a HIV positive complainant with a complaint about the procedure of his employer, the Czech Republic – Police of the Czech Republic, where he had worked as a head assistant at the Department for the Protection of Constitutional Agents. The employer had learnt about his health condition and requested a medical assessment of the medical fitness of a member of Security Corps to perform civil service. The doctor only checked the diagnosis in the university hospital where the illness had been detected and did not perform any other examinations. The result of the medical assessment was that the complainant had ceased to be medically fit to perform civil service in the long term. The director of the relevant department subsequently decided to release the complainant from employment in civil service.

The Defender considered problematic the fact that the assessment of medical fitness on the basis of the Decree on Medical Fitness was mechanical and automatic. Often, a review doctor does not have the opportunity to assess the actual medical fitness to perform civil service. If it follows from the Decree that the health condition in a given category constitutes medical unfitness without anything further, the classification is automatically connected with the termination of service; nevertheless, the provability of the causal link between disability and medical unfitness to perform civil service, which results in the termination of service, is missing in the outlined procedure. Moreover, thanks to the mechanical manner of determining medical unfitness, the position of the State as an employer (compared to a private employer) is considerably easier and fewer duties are imposed on it.

The Defender concluded that the provisions of the Act on Civil Service Employment of Members of Security Corps setting strict restrictions in access to certain professions are, in the light of the case-law of the European Court of Human Rights (and also in the light of the decision of Polish Constitutional Court in an analogical case), in violation of international conventions on human rights and fundamental freedoms and of the Charter of Fundamental Rights and Freedoms, i.e. of the constitutional order of the Czech Republic. Infection with HIV (including the asymptomatic phase) can be considered disability, i.e. a prohibited ground of discrimination according to the Antidiscrimination Act. On the basis of the Defender’s report, the complainant filed a court action.

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