Looking around the world, employment fundamentals often remain the same. India is the country of our latest case review and in this piece we focused on disability discrimination in the workplace and in particular the decision of the Indian Administrative Tribunal in the case of RR -v- Superintendent of Police & others [2005].
In 1994 the Director General and Inspector of Police of Kanataka, Bangalore issued a memo which stated that all candidates applying for the police force “should be subjected to blood tests, to know if there are cases of HIV positive before inducting recruits to the force”. Further officers went as far as saying that they “shall take precautions to ensure that those who are HIV positive are not included in the force”.
One candidate, referred to as “RR”, applied for the force in 1998 after which he was called for an interview. Following on from this, RR was subjected to standard tests, such as a series of tests for physical fitness which he successfully passed. As a result of passing these, RR was provisionally listed as a selected candidate.
On the 22nd March 1999, RR had to undergo a medical during which he was tested for HIV. Firstly this HIV test was carried out without his consent and he did not know that the HIV testing was included as part of his physical assessment. In June of the same year, RR received a letter cancelling his selection from the force on the basis that he had tested positive for HIV. The letter specifically stated that “…candidates with HIV infection will not be eligible for appointment for post of a constable”. The claimant challenged his exclusion from the recruitment process due to his HIV status as a violation of his right to livelihood guaranteed under Article 21 of the Indian Constitution.
When the matter progressed to tribunal it was determined that the initial police memo and subsequent communications in respect of HIV were in breach of RRs equality rights. Accordingly, the tribunal directed that RR be given the role as constable and that all service benefits be given to him as if he was in service on the day of his rejection order. This essentially meant that RR was entitled to any wages and benefits he would have received had he been given the job and that this money had to be back-paid. The tribunal went on to take the radical step of directing that in the case where there was no vacancy in the Police services, that a position be created for RR. This is a radical and unusual determination as generally speaking where no vacant position exists the tribunals order an award of compensation only and generally do not require the employer to create a brand new role.
This case shows the worldwide stance taken in respect of discrimination in the workplace. In this case, the employer was guilty of discrimination at the recruitment phase; an area that is also widely regulated under the Employment Equality Acts in Ireland.
Employers should seek advice from Peninsula Business Services on any potential discrimination issues. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.
