Advice for employers
NAT gratefully acknowledges thesupport of the Trust for London(formerly the City Parochial Foundation)who funded this resource.
HIV@ Work – Advice for employersAs a responsible employer, you will want toensure that your employees are treated fairlyand that those living with HIV are protectedfrom discrimination in the workplace.Improvements in HIV treatment mean thevast majority of people living with HIV willcontinue to form a critical part of your ‘talentpool’ and as an employer, you will want toensure that you are able to attract, developand retain these employees.This guide looks at managing employees living with HIV. It sets out how youcan avoid unlawful discrimination and ensure that you provide appropriatesupport for staff. It is not a substitute for professional legal advice, but it doesprovide pointers both to the requirements of the law and to agreed best practice which will help you to support valued employees who are HIV positive.For advice specifically about the recruitment process, please see NAT’scompanion guide HIV Recruitment: Advice for employers.Revised June 20121
2Working with HIVThe introduction of effective HIVtreatment (known as antiretroviraltherapy or ART) means people livingwith HIV can have a normal life-spanand lead active, working lives.There are two main ‘flash points’ whensomeone’s HIV is more likely to impacton work life: when they are diagnosed;and when they start or switch treatment.1Outside of these times, most employeeswith HIV will only need very occasionalreasonable adjustments at work, suchas flexible hours or some leave for aclinic appointment.NAT carried out research inpartnership with City University intothe employment experiences of peopleliving with HIV.2 This included a surveyof over 1,800 HIV positive gay menin employment. The research foundthat respondents were employedacross a diverse range of sectors,professions and trades. Over halfsaid that HIV had no impact on theirworking life and the data showed thatthere was no significant difference inthe number of days leave HIV positivemen took compared with HIV negativemen for non-HIV related illness. Infact, the majority of respondentshad taken no HIV-related sickness12days in the last year. It’s importantto remember that people living withHIV are able and entitled to workjust like anyone else. There is norisk of HIV transmission througheveryday work contact for eithercolleagues or the public. In order toavoid unnecessary operational andreputational risk, you need to obeythe law in your employment practices,dealing with people fairly and withoutdiscrimination. This will also ensurethat you retain and support the bestworkforce you can, which may wellinclude someone living with HIV.HIV and equality legislationAs an employer managing employees,you are subject to equality legislation.This applies in the UK,3 regardless ofthe size of your organisation or thesector you work in.The Equality Act 2010 protectsdisabled people at work fromdiscrimination. For people living withHIV, this applies from the momentthey are diagnosed. The EqualityAct 2010 replaces the DisabilityDiscrimination Act 1995 and 2005.Working with HIV: a summary of NAT’s employment research, NAT, 2009Working with HIV: a summary of NAT’s employment research, NAT, 2009The Equality Act 2010 does not generally apply in Northern Ireland, with a few exceptions. Northern Ireland hasseparate equalities laws in place. For information contact the Equality Commission for Northern Ireland.3
HIV@ Work – Advice for employersMany of the rightscontained within theDisability DiscriminationAct are retained withinthe new Act, but italso provides disabledpeople, including thosewith HIV, with someadditional protection.As an employer it would be unlawfulto treat someone living with HIV ina worse way than other employeesbecause of their HIV status. This iscalled direct discrimination.For example, you cannot refuse toallow an HIV positive member ofstaff to attend training because youwrongly assume that because of theirdisability they will not progress or bepromoted. This is direct discriminationowing to their HIV status.You must also be aware that bytreating all your staff in the sameway you could still discriminateagainst staff members with HIV.Some management styles or ‘blanket’policies may have a worse impact onpeople living with HIV. The EqualityAct also protects against such casesof indirect discrimination.3An example of a ‘blanket’ humanresources policy which coulddiscriminate against people living withHIV is a promotion policy which requiresstaff to spend extended periods of timeworking abroad in order to qualify foran executive role. Someone living withHIV may be willing and able to do thiswork, but due to HIV-related immigrationrestrictions in certain countries maynot be allowed to enter or stay for thenecessary period of time. To denypromotion on these grounds alonewould be discriminatory unless youcould clearly justify why the policy wasessential for the role or your business.It is also unlawful if a managementpractice or workplace policy resultsin unfavourable treatment of anindividual member of staff livingwith HIV for a reason connectedto their HIV status. This is calleddiscrimination arising from disability.This concept is similar to, but legallydistinct from, indirect discrimination.Discrimination arising from disabilityonly applies if you know, or could bereasonably expected to know, about theemployee’s HIV status.As an employer it would be unlawfulto treat an employee worse thansomeone else because they areassociated with a person livingwith HIV, for example if their partneror relative is HIV positive.
4Such behaviour is known asassociative discrimination. Similarly,you must not treat someone differentlybecause you assume they are HIVpositive, for example because theyare gay or from a country with ahigh HIV prevalence. Discriminatingagainst someone in this way is knownas perceptive discrimination.In addition, as an employer, you mustprotect your staff from harassmentand also make reasonableadjustments to assist disabledemployees at work. These two areasare looked at in more detail below.Finally, you must not treat an employeebadly or victimise them becausethey have made a complaint aboutbeing discriminated against or helpedsomebody else make a complaint.For more detailed advice on the differenttypes of discrimination in the EqualityAct 2010 contact the Equality andHuman Rights Commission (detailsprovided in the ‘Further information,advice and resource’ section).Making people feel comfortable inthe workplaceThe vast majority of people living withHIV have a very positive workplaceexperience, and just get on with theirjob like any other employee. As anemployer it is very unlikely that youwill ever face a discrimination case todo with someone living with HIV, butit is important that you are aware ofyour legal obligations.It helps to be aware and sensitive tothe possible apprehensions of somepeople living with HIV about disclosingtheir status and managing theircondition at work. Since the beginningof the epidemic there has been stigmaand discrimination against peopleliving with HIV and some employeesmay have concerns about how workcolleagues will respond if they decideto disclose their status.You can help address these concernsand send out an important messageabout your commitment to diversityand equality by taking some simplesteps. Possible actions include:
HIV@ Work – Advice for employers Developing an equality and diversitypolicy which makes clear yourcommitment to disabled people,including those living with HIV Ensuring staff, particularly managers,have equality and diversity trainingwhich includes information about HIVand how to sensitively manage staffliving with HIV (particularly issuesaround confidentiality) Helping to end stigma anddiscrimination by improving staffknowledge about HIV (for example,by marking World AIDS Day on1 December.)5Reasonable adjustmentsEquality legislation ensures thatdisabled people have the sameaccess, as far as is reasonable,to everything involved in doing a jobas non-disabled people. To ensurethis happens, employers must makereasonable adjustments to removebarriers for disabled people, includingthose living with HIV.NAT’s employment research showedthat for the majority of respondents,HIV had no impact on their workinglife, but a small proportion of peopleliving with HIV did identify somereasonable adjustments that anemployer could make to assist themat work. In the vast majority of casesthese adjustments will be inexpensiveand easy to accommodate.HIV medication can have someside-effects such as fatigue, nausea,sleep disturbance and diarrhoea,which can sometimes requirereasonable adjustments at work.NAT’s research found that the mostcommon request for adjustmentswere for time off to attend hospitaland clinic appointments, flexibilityin working hours and the requestto work at home occasionally. Mostemployers would have little difficultyaccommodating the adjustments thatHIV positive employees might require.
6If an employee asks you to makereasonable adjustments and youdo nothing, they could bring a claimagainst you in an EmploymentTribunal. It is important to rememberthat the need to make an adjustmentfor an employee is not a reason notto promote them or dismiss them,provided the adjustment required isreasonable.employee need them (and they arereasonable).The duty to make reasonableadjustments also applies tothe recruitment process – formore information please seeNAT’s companion resourceHIV Recruitment: Advice foremployers.What is considered reasonabledepends on things such as the sizeand type of your organisation. Thecosts of any reasonable adjustmentfor an employee living with HIV arelikely to be minimal. However, theGovernment scheme Access to Workcan help with extra costs whereit would not be reasonable for anemployer to meet these.4 You onlyhave to make changes if you know, orcould be reasonably expected to know,that an employee is a disabled person.It is good practice to ensure thatinformation about how to accessreasonable adjustments is madeavailable to all staff at an earlystage of their employment. This willreassure them that you take a positiveattitude to assisting disabled people atwork and will respond appropriately torequests for adjustments should an4Further information about the Access to Work scheme can be found at www.direct.gov.uk.
HIV@ Work – Advice for employersPreventing harassment at workClearly an employer must take stepsto ensure their employees do not facediscrimination in the workplace. Aspart of this, you have responsibilitiesaround harassment at work. In theEquality Act 2010 harassment isdefined as unwanted behaviour relatedto a person’s disability which eitherviolates that person’s dignity or createsan intimidating, hostile, degrading,humiliating or offensive environment.Unwanted behaviour can include, forexample, written or spoken abuse (verbalconduct), graffiti, physical gestures,jokes, or pranks related to somebody’sdisability (non-verbal conduct).Although you may not be the personbehaving in this way, you may beheld responsible for harassment ofdisabled staff by people who workfor you unless you can show that youtook all reasonable steps to preventthis happening. Make sure that youmake it clear to your staff that you willnot tolerate harassment of disabledcolleagues, including those livingwith HIV.7For example you could: put in place a harassment policy(this might be part of a widerequality and diversity policy) make sure that the policy states clearlythat harassment will not be toleratedand will be treated as a disciplinaryoffence inform staff about the policy andtheir responsibility in relation to it.What to do if someone disclosestheir HIV status at workChanges to legislation in the EqualityAct 2010 mean that, except in veryspecific circumstances, it is now illegalfor employers to ask people abouttheir HIV status before they havebeen offered a job.5It is therefore quite possible that youmay have several staff living with HIVwho have not disclosed their status toyou. NAT’s research found that nearly40% of respondents had not disclosedtheir HIV positive status at work, mostcommonly because they simply sawno need to do so.However, some people living with HIVmay decide to disclose their status totheir manager or a colleague at work.Or before they have been included on a group of successful candidates to be offereda job when a vacancy becomes available.5
8This could be, for example, becausestarting or making changes tomedication means that they now wishto access reasonable adjustments, orsimply because they want to be openabout their status.staff informs them that they have adisability. Managers should be madeaware of the particular sensitivitiesaround HIV because of thediscrimination some people may haveexperienced related to the condition.If someone discloses their HIV statusto you, or a member of your staff, itis important to respond in a sensitivemanner. Remember, many HIVpositive employees may fear thatthey will be discriminated against, soit is important to reassure them thatyou will respect their confidentialityand support them to manage theircondition at work.Confidentiality at workMake sure you remind people abouttheir right to reasonable adjustments.It is also good practice to record leavespecifically related to an employee’sHIV status as ‘disability leave’,keeping a record of this separatefrom their general sick leave. Finally,reassure people that you will notdiscuss their status with anybodywithout their permission. You canread more about the importance ofconfidentiality in the section below.It is best practice to ensure that allmanagers have training on how torespond appropriately if one of their6In order to access reasonableadjustments and protection fromdiscrimination, an employee willusually have to disclose their HIVstatus to their employer. However,NAT’s employment research showedthat of people living with HIV whohad not disclosed their status atwork, more than half had not doneso because of fears around theirconfidentiality.The Data Protection Act 1998 (DPA)regulates how personal information isprocessed and protects all personalsensitive data disclosed by a jobapplicant or employee. This includesphysical or mental health conditions.The Data Protection Act specifies thatwritten consent is needed for personalsensitive information to be passed on.Every responsible employer shouldhave procedures in place to ensurethat personal information aboutemployees is properly handled.6T he term ‘personal sensitive data’ has a technical definition within the Data Protection Act (1998).More information about this and other aspects of Data Protection can be found at www.ico.gov.uk
HIV@ Work – Advice for employers9The Information Commissioner’sOffice has produced a code ofpractice for employers and can alsoadvise where people believe that theirrights have been infringed.7disclosed without the consent of theemployee concerned.As an employer you are liable forkeeping information obtained aboutemployees confidential. The DataProtection Act regulates how personalinformation is used and protectssensitive data such as ethnicity,political opinion, religious or otherbeliefs, trade union membership,physical or mental health condition,sex life, criminal proceedings orconvictions.If an employee says that youor a member of your staff havediscriminated against them, it isimportant that you deal with thecomplaint in the right way.Depending on individualcircumstances, you might need todisclose this information to thirdparties. In this case, only personnelthat ‘need to know’ should be informedof the situation. In practice, this willtend to include the Human Resourcesmanager or the person in chargeof implementing any reasonableadjustments. Explicit consent shouldbe sought from employees whensensitive information is processedby an organisation. Sometimes youmay need colleagues’ co-operation toimplement a reasonable adjustment,but confidential details must not be7What to do if someone experiencesdiscrimination at your workplaceIf someone believes they haveexperienced unlawful discriminationthey have the right to make anEmployment Tribunal claim. This canbe a long and expensive process.Having the right procedures in placeto manage complaints can avoidthe need to go to Tribunal – it islikely to be in everybody’s interestto put things right before a claim ismade to an Employment Tribunal.NAT’s employment research foundthat nearly half of those who hadsought redress at work whenthey experienced HIV-relateddiscrimination had had the issuepartially or completely resolvedthrough an internal grievance process.If a member of staff makes a complaint,ask them if they would like todiscuss this informally with you or amanager, or to go through a formalThe Information Commissioner’s Office ‘The Employment Practices Code’ (2005) is available at www.ico.gov.uk
10grievance procedure. Explain thatcomplaining informally can be the moststraightforward way of dealing with acomplaint and that if it becomes clearthat discrimination has occurred,you will take appropriate disciplinaryaction and if necessary alter officeprocedures so that the event does notoccur again.If your employee wishes to make aformal complaint, you should providethem with information about how to dothis according to a formal grievanceprocedure. Further informationabout handling a formal complaintis available from Acas (for contactdetails see ‘Further information,advice and resources’ section).Should you not be able to resolve acomplaint through your informal orformal grievance procedures, youcan find more information aboutEmployment Tribunals at BusinessLink (England), Business Gateway(Scotland), Flexible Support forBusiness (Wales) or NI Business Info(Northern Ireland) (for contact detailssee ‘Further information, advice andresources’ section).Once the incident has been resolved,it is important to review the situationto ensure that no further unlawfuldiscrimination occurs in future.
HIV@ Work – Advice for employersBest practice and HIV in theworkplaceThroughout this guide we haveprovided some examples of bestpractice when managing staff livingwith HIV. This section providesa check list of things to considerto make sure you have properprocedures in place to support HIVpositive employees: Ensure that all staff are providedwith diversity and equality training,which includes informationabout HIV and the importance ofconfidentiality at work. Work with staff to develop a diversityand equality policy which includesinformation on disability and HIV –make sure all staff are aware of thispolicy and their responsibilities inrelation to it. Record employees’ leave related totheir HIV status as ‘disability leave’,keeping this separate from generalsick leave.11 Help to end stigma anddiscrimination by improving staffknowledge about HIV and raisingawareness by marking World AIDSDay on 1 December. Ensure that you have a harassmentpolicy in place and that you actquickly to address any incident ofharassment in your workplace. Make sure that you have informationavailable about reasonableadjustments and support staffshould they wish to access these. Ensure that you have a clearinformal and formal grievanceprocedure in place to assist peoplewho feel that they have beensubjected to discrimination in theworkplace.
12Some final thoughtsAs an employer, you will want to havethe policies and procedures in placethat enable you to attract, developand retain the best staff you can – thismeans ensuring that your workplaceprovides a supportive environment forpeople living with HIV.The Equality Act 2010 has introducedsome new protections for disabledpeople, including those living with HIV.It is important that you are familiarwith the changes introduced by theAct and adapt your workplace policiesto reflect these changes.There are some specific issuesto consider when recruiting staff– for more information see NAT’scompanion guide, HIV Recruitment:Advice for employers.
HIV@ Work – Advice for employersThe vast majority of people living withHIV have a very positive workplaceexperience, and just get on with theirjob like any other employee. As anemployer, it is very unlikely that youwill ever face a discrimination case todo with someone living with HIV, butit is important that you are aware ofyour legal obligations.”13
Equality and Human RightsCommission (EHRC)The EHRC have a statutory remit topromote and monitor human rights;and to protect, enforce and promoteequality across the seven “protected”grounds - age, disability, gender,race, religion and belief, sexualorientation and gender reassignment.Trade Union Congress (TUC)The TUC has 58 affiliated unionsrepresenting 6.2 million workingpeople from all walks of life. The TUCcampaigns for a fair deal at work andfor social justice at home and abroad.Helpline England: 0845 604 6610 Scotland: 0845 604 5510 Wales:0845 604 8810www.equalityhumanrights.comAcas (Advisory, Conciliation andArbitration Service)Acas has a range of services which canhelp individuals or groups of employeesto avoid or resolve problems and disputesin the workplace. The Acas helpline offersfree, confidential and impartial guidanceon employment rights and workplaceissues. They provide general informationon employment rights and responsibilitiesand can also help employees andemployers who are involved in anemployment dispute to identifyIn Northern Ireland, you can contact theEquality Commission for Northern Ireland.Enquiry Line : 028 90 890 890www.equalityni.orgwww.tuc.org.uk14Further information, advice and resourcespractical ways of sorting out the problem.Helpline: 08457 47 47 47www.acas.org.ukCommunity Legal AdviceCommunity Legal Advice is a free andconfidential advice service paid for bylegal aid.Helpline: 0845 345 4 345www.direct.gov.ukDisability Law ServiceThe Disability Law Service is a nationalregistered charity that provides confidentialand free legal advice to disabled peopleand their families, carers and advocates.Advice line: 020 7791 9800www.dls.org.uk
AdvicenowAdvicenow is an independent, notfor-profit website providing accurate,up-to-date information on rights andlegal issues.www.advicenow.org.ukInformation Commissioners OfficeThe Information Commissioner’sOffice is the UK’s independentauthority set up to uphold informationrights in the public interest, promotingopenness by public bodies and dataprivacy for individuals.Helpline: 0303 123 1113or 01625 545745www.ico.gov.ukAdvice for businessesFree information, support and practicaladvice for businesses of all sizes:THT DirectProvides information, support andadvice on HIV and sexual health. ngland- Business LinkEHelpline: 0845 600 9 006www.businesslink.gov.ukTHT Direct: 0845 1221 200www.tht.org.ukScotland- Business GatewayHelpline: 0845 609 6611www.bgateway.comNAM aidsmapNAM’s e-atlas can direct you to an HIVsupport organisation in your local area.Wales – Flexible Support forBusinessTelephone: 03000 6 03000fs4b.wales.gov.ukwww.aidsmap.comNorthern Ireland – NI Business InfoTelephone: 0800 027 0639www.nibusinessinfo.co.ukThe largest national pan-disabilityorganisation in the UK led by disabledpeople which campaigns for disabilityequality and human rights.Disability Rights UKwww.disabilityrightsuk.org
It is not a substitute for professional legal advice, but it does provide pointers both to the requirements of the law and to agreed best prac-tice which will help you to support valued employees who are HIV positive. For advice specifically about the recruitment process, please see NAT's companion guide HIV Recruitment: Advice for employers.
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