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HIV in the workplace - negotiators' guidance

  1. What are HIV and Aids
  2. Fighting discrimination
  3. Harassment
  4. Disability Equality Duty
  5. Key issues relating to HIV in the workplace
  6. Recruitment policies
  7. Medical examinations
  8. Harrassment
  9. Sickness absence and return to work
  10. HIV and carers needs

What are HIV and Aids?

HIV (Human immune deficiency virus) is a virus.

The virus attacks their immune system, leaving the immune system open to attack from other infections. Red ribbon

Most people with HIV are perfectly healthy and often people living with HIV know they have been infected. Although it cannot be cured, HIV can be effectively treated so that it does not progress to Aids.

Aids is a diagnosis where part of the body’s immune system stops functioning properly as a result of infection by HIV.

Without a properly functioning immune system the body is unable to protect itself from certain diseases.

People with Aids tend to die from diseases the body becomes prone to, such as pneumonia and certain forms of cancer. People cannot develop Aids without first contracting HIV.

Transmission of HIV and Aids

The HIV virus can be transmitted from anyone who has the virus – but it is not easily transmitted. There is no risk from normal everyday social or work contact with someone who has HIV.

Inflected blood, blood products, vaginal fluids or semen entering the bloodstream can spread the virus. The main way this happens is through unsafe sex or sharing hypodermic needles with someone who is already infected.

HIV cannot be caught through:

  • Social contact
  • Saliva
  • Sharing cutlery
  • Sharing china
  • Sharing toilets
  • Shaking hands
  • Coughs and colds

Fighting discrimination

Negotiators and reps will find that most difficult obstacle to overcome will be to challenge negative attitudes. Research shows that where workers HIV and Aids status becomes public knowledge at work, victims become the target of hostility. They are often subjected to harassment, abuse or discrimination.

Gay men and increasingly black African workers are often associated with HIV as negative media coverage continues to label Aids as a gay disease and links heterosexual Aids with black people. This has led to an increase in cases of harassment and abuse against gay men and black people under the guise of ‘fear of Aids’.

The legal context - employers’ legal obligations

  • The amended Disability Discrimination Act provides protection to people living with HIV.
  • Anyone living with HIV is deemed to have a disability from the point of diagnosis.
  • There is no need to go through the arduous process of proving that anyone with HIV is a disabled person for the purpose of claiming protection under the Disability Discrimination Act.
  • It is important to note, that even though people with HIV status can claim protection under the Disability Discrimination Act, they don’t have to call themselves disabled. Nor do they have tell their employer (unless they are a healthcare worker doing ‘invasive procedures’)
  • This means that people living with HIV can’t legally be harassed or discriminated against in recruitment; in employment terms and conditions; in opportunities for promotion, transfer, training or other benefits; through unfair dismissal or less favourable treatment than other workers.
  • Employers are also vicariously liable for staff who behaves in a discriminatory way in the workplace.

Harassment

Section 4(3) of the Disability Discrimination Act explicitly prohibits harassment.

Harassment is defined in section 3(b) as where for a reason which relates to a disabled person’s disability, a person engages in unwanted conduct which has the purpose or effect of (a) violating the disabled person’s dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive treatment.

Disability Equality Duty

The Disability Equality Duty was imposed on employers from December 2006. The duty is aimed at tackling systematic discrimination and ensuring that public authorities build disability equality into everything they do.

Section 49(A) of the Disability Discrimination Act says that public authorities must, when carrying out their functions (ie, policy making, service delivery, employment functions) have due regard to:

  • Promote equality of opportunity between disabled people and other people
  • Eliminate unlawful disability discrimination
  • Eliminate harassment of disabled people that is related to their disability
  • Promote positive attitudes towards disabled people
  • Encourage participation by disabled people in public life
  • Take steps to meet disabled people’s needs, even if this requires more favourable treatment

 

Under the specific duties of the legislation generally public authorities are required to

  • Publish a disability equality scheme showing how it intends to fulfil its general duty and its specific duties
  • Involve disabled people in the development of its scheme
  • Review the disability equality scheme every three years

 

The Disability Equality Duty applies to both employment and service delivery.

Key issues relating to HIV in the workplace

Disclosure

Generally there is no legal obligation to disclose HIV status.

Disability related sickness absence

The duty to make reasonable adjustments is likely to require that employers allow someone with HIV time off for medical appointments related to their HIV status.
It may also be a reasonable adjustment to record any disability-related absences separately for the purposes of any sickness absence procedure as the DRC employment and occupation code of practice states “…it is likely to be a reasonable adjustment to discount disability related sickness absence when assessing attendance as part of a redundancy selection scheme”.

Health and safety

Health and safety is often used as an excuse for discriminatory treatment against people with HIV status. It is highly unlikely that there would any risk of HIV transmission from any normal work activities, so there are no grounds on which discrimination on the grounds of health and safety would be justified.

Create safe environment for people with HIV status to discuss difficulties and adjustments needed.

The trade union response

  • Encourage the setting up of self-organised groups to give members directly affected by HIV related discrimination the opportunity of meeting and organising together.
  • In the absence of self organised groups, branches should publicise the names of any national committees, union officers, regional contacts or external organizations that members can contact for advice
  • Ensure that employers have adequate information on HIV issues and encourage employers to develop training for employees.
  • Make it known that the branch will support members facing discrimination or harassment because of their HIV status
  • Review equal opportunity policies and statements to ensure that they reflect the needs of people living with HIV.
  • Support HIV positive members when requesting ‘reasonable adjustments’ under the the Disability Discrimination Act.
  • Support members to return to work after an absence or break as a result of HIV treatment.

Recruitment policies

Irrespective of equal opportunity policies, or employment policies, it is known that many employers will not recruit and or promote someone known or suspected to have HIV status.

It is for this reason that people who know they have HIV keep their status a secret for as long as possible.

However, in almost all cases, HIV status is totally irrelevant to whether or not an applicant is the best person for the job.

Government guidelines make it clear that ‘in almost all occupations there is no risk of an infected person passing the virus on to others and this would not therefore be a reason for treating them any differently from other applicants.’

There are some specific circumstances where some workers (generally health workers) have to notify their employer if they have had a positive HIV anti body test, but in general there is no reason to declare HIV status. Nor should application forms have questions relating to HIV status.

The trade union response

  • Publicise articles about HIV in branch newsletters and circulate information to members to show that the union is taking the issue seriously and will support members.
  • Approach the employer to seek agreement that a statement will be included in recruitment policies to say that the employer will not discriminate against people with HIV status.
  • Support any member who feels pressurized to resign as a result of sick absences linked to HIV.

Medical examinations

Prior to employment offers, some employers will ask for a medical examination.

Except in rare circumstances, such as working in specific medical fields, there is no reason why the medical test should include an HIV anti body test and no doctor should take a sample of blood to be tested for HIV without specifically telling the patient and giving counselling.

Where an employee succumbs to illness during the course of employment and the employer seeks a medical report, the employee has the right to see the medical report before it is sent to the employer and should arrange to see the GP before it is written or submitted.

Should the report contain irrelevant information, or reference to HIV status, the can be asked to remove the irrelevant information and the reference to HIV status.

The trade union response

  • Ensure that application forms do not ask irrelevant questions about any health concerns, including HIV.
  • Discuss with the employer what information they need to request when medical reports are required and ascertain why the information requested is required. Ensure that HIV status is not included.
  • Seek to agree a complaints procedure for those job applicants who feel they have been treated unfairly.

Harassment

People with HIV may face harassment at work where their HIV is known. The main reaon for this is ignorance and prejudice. Harassment by the employer or employee is illegal.

The trade union response

  • Support the member. Discuss the options available to support member, for example through the grievance procedure, mediation or a possible employment tribunal application.
  • Always be guided by the member’s needs. Where necessary seek advice and or support from PCS Proud or the PCS equality office.

Sickness absence and return to work

HIV sickness absence should be treated he same as any other employee with a potentially life threatening illness.

Only if the illnesses and absences affect the employee’s ability to do the job or return to work should their HIV status become an issue.

The trade union response

  • Advise the member to obtain a thorough medical prognosis from a specialist HIV medical advisor
  • Ensure the employer applies the occupational sickness absence scheme correctly. An employer can usually only dismiss someone legally if they have investigated the employee’s health to see if they are likely to be able to return to work and do their job in the future.
  • Ensure that sickness absence connected with HIV status is counted separately away from general sick leave.
  • Explore all possibilities to support the member. In some instances ill health early retirement with an enhanced pension may be a possibility. Ill health retirement can be complex, negotiators/reps should seek advice from HQs if necessary.
  • Explore the possibility of member returning on a part time basis
  • Explore the possibility of member working from home or altering their working patterns to fit in with taking or adjusting to medication
  • Review occupational sickness schemes

HIV and carers needs

HIV can affect PCS members directly or indirectly because their children, partners, or other dependents become ill as a result of HIV infection or Aids.

This is a stressful time for carers and can be made worse if they have to argue for time off with their employer.

It is not uncommon for members to use up their annual leave, or claim sick leave in order to care for dependents living with HIV, rather than try and explain the situation to their line manager or human resources department.

Due to the continuing stigma associated with HIV confidentiality is also an issue.

The trade union response

  • Ensure that national and local agreements that have provision for special leave, caring or compassionate lave, also applies for those who have caring responsibilities for people living with HIV.
  • Branches should consider negotiating carer leave agreements that entitle employees to a specified period of paid leave and a longer period of unpaid leave.
  • Branches are also encouraged to negotiate flexible working patterns and/or a change to duties or part time working to support members. Circumstances will dictate whether change in working patterns is permanent or temporary. The important thing is to negotiate as much flexibility as the member needs.

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