Employee reinstated one year after being fired for testing HIV positive

21 May 2018

Following a landmark legal case in Sichuan, an employee who was sacked after being diagnosed as HIV-positive has been reinstated and awarded 63,000 yuan in compensation for loss of earnings.

A Neijiang municipal district court issued a mediation settlement on 28 April 2018 under which the plaintiff, known as Xie Peng, signed a new two-year contract with his former company at a salary of no less than 3,400 yuan per month, more than double the local minimum wage.

The company paid around 60,000 yuan in compensation into Xie’s bank account last week and he has now returned to work.

Xie’s HIV status was revealed when the company that hired him demanded that he undergo a medical exam. After the results came back, Xie was told by his department head to “go home and take care of it.”

Instead, Xie sought legal advice and filed a complaint with the local labour dispute arbitration committee on 10 November 2017 demanding that he be reinstated on an unlimited term employment contract and be compensated double his salary for illegal dismissal.

The arbitration committee ruled in December 2017 that Xie should be paid 6,758 yuan in compensation but did not agree to his reinstatement. Dissatisfied with the ruling, Xie filed a lawsuit in the district court and the case was heard on 25 January 2018.

Xie eventually agreed to a mediated settlement with company after learning that his former colleagues had all stated that they were willing to work with a HIV-positive employee. At the mediation meeting, Xie signed a new two-year contract and accepted 63,000 yuan in compensation, based on double the salary he should have earned had he been continually employed since his dismissal in the summer of 2017.

Well-known anti-discrimination lawyer, Liu Shuqing, stated that the case was an important breakthrough in the long-running battle to protect the rights of workers with HIV:

The plaintiff’s demands were almost completely satisfied... In the nine HIV/AIDS discrimination cases that have occurred so far in China, this is the first time an employer has taken the initiative and agreed to welcome a HIV-positive employee back to work.

“After many years of legal battles, the right to employment for HIV-positive workers has finally turned a corner,” he said, adding that a national law protecting the rights of people with HIV was now not far away.

A key issue in protecting workers’ rights has been the complicity of local hospitals in conducting HIV tests during employee medical exams and then passing those results to the employer. In response to Xie’s case, a group of 72 lawyers signed a petition on 27 April demanding that the Neijiang government investigate and punish the six local hospitals believed to be involved in this practice.

It is hoped the petition will help raise awareness of this illegal practice and encourage other municipal governments to take action.

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