Employment and HIV testing

Since 2005, all people with diagnosed HIV have had legal protection against discrimination at work. In legal terms, all people with diagnosed HIV are considered to be ‘disabled’, although this is probably not a term that many people with HIV would otherwise identify with. In England, Wales and Scotland, the Equality Act 2010 applies. In Northern Ireland, the Disability Discrimination Act 1995 (as amended) is the relevant legislation.

Being considered disabled gives people with HIV protection against discrimination in many aspects of employment, including the recruitment process. The legislation covers less favourable treatment:

• when applying for a job;
• in the terms on which employment is offered;
• in opportunities for training, promotion or other benefits;
• in the way an employee is treated by the employer and colleagues;
• in being dismissed or selected for redundancy;
• after leaving the job, for example when requesting a reference or dealing with the company pension fund.

An employer can be held responsible not just for the discriminatory actions of the management or of the company itself, but also for the behaviour of other employees. For example if an HIV-positive employee suffers harassment from his or her colleagues, and the employer cannot show that they took steps to try and prevent such action occurring, then the employer can be held responsible.

Probably the most important aspect of the legislation is the right to request reasonable adjustments. If there is a way of working or an aspect of the workplace which puts a disabled worker at a disadvantage, the employer must make all adjustments which are reasonable to remove that disadvantage. Basically this means that employers must take reasonable steps so that the disabled worker can carry out his or her job without disadvantage.

Reasonable adjustments can only be made if the employer is aware of the disability. But this doesn’t mean that the employee is required to disclose their disability, or to do so at a particular time.

Two examples of reasonable adjustments are making a workplace accessible to a worker who uses a wheelchair and providing a screen-reader that will allow a worker with visual impairment to use a computer.

For people with HIV, the most commonly requested adjustments tend to be time off for clinic appointments, changes in hours worked and changes to start/finish times. In some cases, adjustments may only need to be temporary (for example, while dealing with the side-effects of a new treatment regimen). Flexible working arrangements are often highly valued by employees with HIV.¹

However, an HIV-positive diagnosis can pose problems in certain professions. People who travel a lot as part of their work may face problems with entry restrictions in various countries (although the United States has lifted its entry restrictions). Healthcare workers who perform 'exposure-prone procedures' such as surgery will be required to move to different functions if their employer is aware of their HIV status. The armed forces are exempt from parts of the equality legislation and do not allow people with HIV to serve.

Moreover, despite the legislation, discrimination continues and many employers have limited understanding of HIV issues. Confidentiality may not always be protected when employees disclose their HIV status to managers or human resources personnel. For these reasons, many people with HIV choose not to mention their HIV status to their employers.

The Equality Act 2010 introduced for the first time a restriction on when employers can ask job applicants detailed questions about health or disability. Such questions should now only be asked after interview, once a job offer has been made.

This restriction was introduced as a direct result of lobbying by disability charities, including NAT and Terrence Higgins Trust. There was widespread suspicion that the use of such questionnaires led to discrimination against candidates who revealed their disability, although this was not always easy to prove. Now that only candidates with a provisional job offer can be asked to complete a health questionnaire, it will be easier to demonstrate discrimination should a job offer be withdrawn.

Neither employers nor occupational health staff working for them are permitted to ask questions about health, on an application form, at an interview or otherwise during the application process.

Questions may only be asked after the applicant has been offered a job (either on a conditional or unconditional basis), or after the applicant has been included in a pool of successful candidates to be offered a job when a position becomes available.

On the other hand, employers can ask candidates about disability on an equal-opportunities monitoring form. This form is different from the main application form in that completing it is usually optional, it should be anonymised and it should be analysed separately. The purpose of an equal-opportunities monitoring form should be for the employer to monitor how well they are performing in terms of equality, diversity and compliance with anti-discrimination legislation. Questions may be asked about the applicant’s ethnicity, gender, age, disability, etc.

Applicants are not usually obliged to complete an equal-opportunities monitoring form. Moreover, dishonesty in it would not have the same implications as dishonesty on a job-application form or a subsequent medical questionnaire. It does not form part of the employment contract.²

There are some other exceptions, when questions may be asked during the application process:

• The employer can ask if the applicant will need any reasonable adjustments for the interview or another activity that is part of the recruitment process. This would enable a wheelchair user to check that the interview venue would be accessible. The employer should not ask about reasonable adjustments that would be needed to do the job itself.
• If the employer guarantees to interview every disabled applicant or has another measure to benefit disabled applicants, they may ask about disability. Applicants would be under no obligation to answer this type of question.
• If the employer can demonstrate that a health-related question relates to a person’s ability to carry out a key part of the job, the question may be asked. For example, a role may require the employee to drive safely, and a person unable to do so because of recurrent epilepsy may not be suitable for that job. The employer may need to ask about the person’s ability to do this part of the job if reasonable adjustments were put into place.
• If the employer can demonstrate that they have a valid reason to require a person with a particular health issue for the job, they may ask about that health issue. This would enable a peer support group for people with HIV to specify that applicants must be living with HIV themselves.
• Employers who need to vet applicants for the purposes of national security may ask health-related questions.

After a provisional job offer has been made, it is permitted for the employer to assess the suitability of a job applicant, in terms of their health, for the job they have applied for. Certain jobs may require physical stamina, particular abilities that could be compromised by ill-health, or work in a hazardous environment.

But there are very few work roles in which HIV infection could be a reason not to employ someone. Although this is considered unjust by many, there is a ban on healthcare workers with HIV working in roles where they perform exposure-prone procedures, such as surgery. A job requiring travel to countries which restrict the entry of people with HIV could be another. There are some working environments where the risk of exposure to opportunistic infections such as tuberculosis could be a concern for an employee with HIV.³

In most cases, HIV is irrelevant to a person’s ability to do the job, so the withdrawal of a job offer because of HIV status would be illegal. The statutory Code of Practice gives this example:

A woman is offered a job subject to a satisfactory completion of a health questionnaire. When completing this questionnaire the woman reveals that she has HIV infection. The employer then decides to withdraw the offer of the job because of this. This would amount to direct discrimination because of disability.⁴

The health questionnaire should only collect as much information as would be relevant to assess suitability for the job in question. Under the Data Protection Act 1998, if employers wish to collect information on their workers’ health, they should be clear about why they are doing so and satisfied that the intrusion of privacy is justified by the benefits that result.⁵

When faced with a form that asks about HIV, individuals may prefer to speak in confidence to an appropriate member of staff, either in addition to, or as an alternative to, filling in a questionnaire. This gives an opportunity to explain in more detail how they are successfully managing their condition and be on hand to answer any questions, rather than rely on a form.⁶

It may also be possible to explain that there is an underlying medical condition which is covered by the protection of the DDA and which may require reasonable adjustments, without specifying HIV. Doctors sometimes call this “giving the prognosis not the diagnosis”; a GP or occupational-heath doctor may be able to provide supporting evidence concerning the employee’s health, on this basis.

Under the anti-discrimination legislation, employees are not required to disclose their disability at any specific moment. While reasonable adjustments can’t be made until the employer is aware of the disability, the employee can disclose this at any stage he or she chooses.

Nonetheless, misleading information on a medical questionnaire could have consequences for the employment contract. If an employee incorrectly answered “no” to a question about HIV infection and this was subsequently discovered by the employer, it could constitute a breach of mutual trust, and so invalidate the employment contract.

Seven per cent of employers have dismissed an employee while in employment because they had given misleading health information.⁷ Nonetheless, in some cases, employers may leave themselves open to a challenge of direct disability discrimination in doing so.

It may be preferable to leave a question on a form blank than to answer “no”. As such, the employee is simply not answering, which means he or she is not disclosing, but isn’t misleading either. It may also be easier to disclose HIV at a later stage if the answer has been simply left blank.

For further information on all aspects of employment, see NAM’s Social & legal issues for people with HIV.