World AIDS Day is observed annually on the 01 December, dedicated to raising awareness about HIV and AIDS. In the context of employment law, it is vital for employers to understand the protection afforded to those living with HIV, alongside the broader disability protections in the workplace.
HIV as a Disability
An employee living with HIV is automatically protected under disability discrimination law in accordance with the Equality Act 2010 (EA 2010) from the moment of diagnosis. HIV is one of four conditions/impairments afforded automatic protection under the EA 2010, including cancer, multiple sclerosis and a visual impairment, such as certified blindness.
This automatic classification means that employees living with HIV are protected from discrimination in numerous aspects of life. In the workplace, they must not be treated less favourably than other colleagues and employers must make sure their policies and procedures do not detriment employees for a reason connected to their HIV status. As applicable to all disabilities, employees living with HIV must not be subject to discrimination, harassment or victimisation for a reason linked to their HIV status.
Once an employer is aware of an employee’s HIV status, they are required to implement reasonable adjustments to help the employee perform their role, and ensure they have the same opportunities as others. Research by the National Aids Trust highlighted that the most common adjustments include time off to attend clinical appointments, and flexibility in working hours which will help accommodate potential symptoms of medication, including fatigue and nausea. These are adjustments which most employers would likely have minimal difficulty accommodating.
Broader Scope of Disability Protection
Whilst HIV is a specific example, protection under the EA 2010 extends to all individuals who meet the definition of having a ‘disability’. The law will recognise someone as disabled if:
- They have a ‘physical or mental impairment’; and
- The impairment ‘has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’
The definition is broad and can capture a wide range of conditions, including physical disabilities and non-visible disabilities such as poor mental health and progressive conditions (such as Parkinson’s and Alzheimer’s).
How can employers provide support?
- Non-discrimination: Employees and job applicants must not be discriminated against for having a disability. This includes direct and indirect discrimination, harassment or victimisation on the grounds of their disability.
- EDI Policy: Employers must have an Equality, Diversity and Inclusion Policy in place, highlighting the commitment to supporting those with disabilities.
- Reasonable Adjustments: Where an employer is aware that an employee has a disability, they must accommodate reasonable adjustments to remove or reduce a disadvantage related to an employee’s disability. In some instances, it may be beneficial to seek the advice of an occupational health professional for a greater understanding.
- Training: All staff, particularly management, should be provided with equality and diversity training, including information on supporting those with disabilities in the workplace.
- Confidentiality: Unless the employee is happy for their disability to be known, an employer should keep this information confidential. If disclosed to any third party without the express consent of the employee, this can amount to a breach under the Data Protection Act 2018.
- Supportive Environment: Employers must foster an inclusive environment where employees feel safe to discuss their disability. Policies and procedures in the workplace must be inclusive, and a zero-tolerance stance toward discrimination should be adopted.
- Celebrate International Days: Utilise days such as World Aids Day to educate employees and raise awareness in the workplace.
Conclusion
World AIDS Day reminds us of the importance of protecting and understanding the rights of employees with HIV and other disabilities. Individuals living with disabilities may still face challenges despite legal protections, and employers must be proactive in addressing any concerns.
If you have any questions in relation to the Equality Act 2010 or employment law more generally, please do not hesitate to contact a member of the AfterAthena team (part of the Napthens Group) who are able to offer 30 minutes of free advice to QCS members.
