HIV Discrimination: Advice for employees and employers
Gareth Thomas’s brave revelations about living with HIV have inspired others living with the condition to open up about their experiences. Often individuals diagnosed with HIV can experience stigma in a number of arenas, including their workplace being a significant one.
What protections do individuals suffering from HIV have in the workplace?
Under the Equality Act 2010 (EA), individuals who suffer from a physical or mental impairment which has a ‘substantial’ and ‘long-term’ adverse effect on their ability to do normal daily activities are deemed to be disabled and therefore qualify for a number of protections from discrimination.
It could be said that individuals diagnosed with HIV and responding well to treatment no longer suffer from a substantial impact on their normal day to day activities, and are therefore not covered under the EA. However, the EA classes those with HIV as disabled automatically, from the moment an individual is diagnosed. They do not need to satisfy the definition of a disability under the EA.
What does this mean for employers?
As for any individual with a disability within the meaning of the EA, employers must ensure that they do not discriminate against those with HIV, including at recruitment stage. A job applicant does not have to disclose if they are HIV positive, nor do they need to disclose it once employed. There are rare exceptions to this, for example healthcare workers carrying out “exposure-prone procedures”, e.g. surgeons.
Employers should ensure that they do not discriminate directly against a disabled employee, for example by refusing training to someone with HIV that would be offered to HIV-negative employees.
Blanket workplace policies should not discriminate indirectly against disabled employees by putting those with HIV at a disadvantage to those who do not. Reasonable adjustments should be made to ensure those with HIV are not disadvantaged in the workplace, for example by allowing them time off for medical appointments.
Bullying or intimidation of employees with HIV could constitute harassment, and employees who complain about being discriminated against, or about the fact that their colleague has been discriminated against, could benefit from protection against victimisation.
Colleagues who support those with HIV should also not be discriminated against due to their association (associative discrimination).
What should employers do?
Equal Opportunities policies should include provisions to protect actual or perceived HIV-positive employees, including information, instruction and training for employees and managers about the condition. Procedures for dealing with the management of an HIV positive current or future employee can also be included within Equal Opportunities policies.
If you have any questions about this article or would like a review of your equal opportunities process please contact Angharad Birch.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.