Employers' legal responsibilities
Under the 2010 Equality Act, HIV is considered to be a disability from the point of diagnosis. Employers have a number of legal responsibilities both during the recruitment process and after an employee begins a job.
What are my responsibilities during recruitment?
It is unacceptable to discount a candidate because of their disability. The general position is that it is now unlawful for an employer to ask any job applicant about their health or disability unless and until the applicant has been offered a job. However, the Equality Act sets out a very limited number of circumstances where an employer can ask about an applicant’s disability or health. These are as follows:
- Asking whether the applicant needs any reasonable adjustments for the selection process. It should be clearly marked on the application form that this is an optional question.
- To decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job. There are very small number of circumstances where this would apply. For example: it would be lawful for applicants for a job at a scaffolding company to be asked during recruitment about their mobility and ability to climb the scaffolding safely. It would not be lawful to ask an applicant for a job as bank teller about their mobility as this is not intrinsic to the job.
- To take positive action to assist disabled people. This includes being a member of two ticks scheme where disabled applicants who meet the minimum requirements for a role are interviewed. Again disclosing their disability should be clearly marked to applicants as optional.
- In circumstances where the job has a genuine requirement for the post holder to have a disability. For example a befriending service for people with HIV might require the person in post to be living with HIV themselves.
What should I do if a colleague or employee discloses they have HIV?
It’s important to remember that disclosing that you have HIV is a significant and intimidating event for a lot of people. Confidentiality is a major concern for many people, and the most common reason why someone would disclose at work is to ask for reasonable adjustments. Find out more about legal requirements in relation to both these in the following sections.
Discussing reasonable adjustments
Employers are required to consider making reasonable adjustments for an employee who has HIV, should the employee request them. Reasonable adjustments are changes made to remove barriers that might make it more difficult for the employee to work. Where the adjustments are reasonable, and the barriers relate the person having HIV, you are required to put them in place.
HIV treatments can have some side effects and typical adjustments people living with HIV will ask for will include time off to attend appointments, flexible working hours or occasionally working from home. The majority of adjustments people living with HIV request will be inexpensive and simple to accommodate.
Keeping a person's HIV status confidential
The Data Protection Act 1998 regulates how personal information about employees is handled. Under this law it is illegal for a member of staff to disclose information about an employee’s HIV status to others without explicitly seeking the person with HIV’s permission first.
Confidentiality is extremely important to people living with HIV. In 2014, disclosure was named as a priority concern in a forum of people living with HIV. Although understanding of HIV by the general public has improved, HIV is still a stigmatised condition and many people fear the impact that disclosing their status will have on their job security and their relationships with others.