• Kyodo

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The Chiba District Court on Monday declared illegal the dismissal of an HIV-positive Japanese-Brazilian man from a plastic-processing firm following an HIV test conducted without his knowledge.

The court declared null and void the 35-year-old man’s dismissal from Takigawa Chemical Industry Ltd. in Ichikawa, Chiba Prefecture, and ordered the firm and a former director of Ichikawa Municipal Higashi Hospital to pay compensation.

The court ruled that the dismissal was based on a blood test conducted by the hospital for Takigawa Chemical without the employee’s approval, and ordered that his dismissal be annulled and that he be compensated to the tune of 6.6 million yen.

Judge Yukio Nishijima said: “The discharge is invalid. The hospital violated the plaintiff’s privacy by conducting the HIV test without his consent and conveying the results to the company.”

The amount consists of 3.5 million yen in damages and 3.1 million yen in unpaid salary. Of the 3.5 million yen, 2 million yen is to be paid by the company, while the former hospital director, Masayuki Saito, has to pay 1.5 million yen.

The employee, whose identity was withheld, had sought 20 million yen. The court, however, said his mental anguish was not as serious as he claimed because he knew he had contracted HIV through a blood transfusion before the test results were revealed.

It is the first damages award in Japan imposed on a medical institution for violating the privacy of an HIV-positive individual and the second case in which the dismissal of an employee for being HIV-positive was annulled.

“The knowledge that someone is HIV-positive needs to be confidential as public understanding of the disease is still insufficient,” Nishijima said. He added that even though the hospital received a request from the company, conducting the test without confirming the examinee’s consent was illegal.

Although Takigawa Chemical insisted during the trial that the test was intended to prevent infection in the event of an accident, the court rejected the claim, saying the firm “did not have a rational reason” to conduct the test.

“The firm began conducting HIV tests only on newly recruited Brazilians before 1994 and had the unreasonable intention of expelling HIV-positive workers,” Nishijima said.

According to the ruling, Takigawa Chemical asked the hospital to conduct an HIV test on the plaintiff during a company medical check in November 1997 without asking his permission. The hospital later provided the results to the firm.

The company then showed the test results to the man and reportedly told him: “This causes trouble. You should stop working here.”

Although the firm later retracted its demand after the employee threatened to notify the press, it eventually dismissed him in December 1997, citing corporate restructuring as the ostensive reason. His contract was to expire in December 1998.

During the trial, the company insisted that it did not dismiss the man. They said the employee voluntarily quit after being continuously absent from work without notice.

The former hospital director said he thought the company had obtained the man’s permission before requesting the test.

Officials at Takigawa Chemical declined to comment on the ruling but said they will decide on what to do after consulting their lawyers.

Yutaro Kikuchi, a lawyer representing the former hospital director, said his client will pay the compensation and does not intend to appeal the ruling at present.