Cases

Only a limited number of disability discrimination cases in relation to HIV have been reported in the media, and these are summarised below. Many other cases have not been reported because they did not attract the media’s interest, were not significant in legal terms or were subject to confidentiality agreements.

The employer provided residential care for people with learning difficulties, autism and other behavioural problems. Scott Watts was a live-in support worker, who disclosed his HIV status after five months’ employment. By that point, he had already been scratched, lacerated and bitten by service users several times.¹

When he disclosed his status, he was suspended while his employers carried out a somewhat superficial risk assessment. He was then dismissed because the risk assessment suggested that there was a possibility of HIV transmission occurring if a service user bit him.

The employer never seriously considered any reasonable adjustments, and so the employee won on these grounds.

However there was also a claim for direct disability discrimination, and while this was upheld at the first hearing, this case was lost on appeal.

The Employment Appeal Tribunal said that the initial employment tribunal had been mistaken in looking at whether (on the ground of his disability) Mr Watts had been treated less favourably than another person with a communicable disease. They said that the circumstances of the claimant and the comparator must be the same or not materially different and therefore the tribunal should have looked at how the employer would have treated a person with some attribute, not caused by HIV, carrying the same risk of causing to others illness or injury of the same gravity (serious and possibly fatal). If the tribunal had found that this comparator would also have been dismissed, then Scott had not been less favourably treated for the purposes of direct discrimination. In other words, there would have been no direct discrimination.

Lawyers commenting on the case noted that this interpretation is extremely restrictive² and that the tribunal may have showed a lack of understanding of HIV infection.

Massimo Pasquarelli was a restaurant manager for an Emporio Armani store (run by Orthet Limited), where he had worked for 14 years. The store was closed temporarily for refurbishment. All other employees were given alternative work.[ref][ref]

The tribunal ruled that the company discriminated against Massimo “by not offering him alternative employment and did so for a reason relating to his disability, treating him less favourably than they treated a person to whom that reason did not apply.” Pasquarelli agreed an out-of-court settlement of €18,000 after winning the case in 2006.

This case related to sickness absence. Michael Ashton had worked for the fire service for five years when he was diagnosed with HIV in August 2006. He immediately informed his manager and took several periods of sick leave in the next four months. He was then told that his attendance was putting his job at risk.

Ashton settled out of court, apparently for less than £10,000.³

Mark Hedley was a store manager at an Aldi supermarket, and the company had previously been supportive when Hedley’s partner had died of an HIV-related illness. Hedley was himself diagnosed with HIV in November 1998 and needed to go onto treatment immediately. He was told to take as much time off as he needed, and he took nearly three months off, after which he felt ready to return to work.^4,5

However, the company then put him off from returning to work in several different ways, before telling him that he should look for another job.

Aldi’s evidence submitted before the scheduled tribunal hearing said: “The decision to ask the applicant to remain away from work was justified in all the circumstances of the case given the nature of the applicant’s condition, the fact that other staff in the same store said they would be uncomfortable with working with the applicant and the respondent’s [Aldi’s] genuine and understandable concern that if the applicant remained in situ sales at the store would suffer.”

Hedley brought a case of both disability and sex discrimination. The case generated a lot of bad publicity for Aldi, which settled out of court. Press reports suggested that the payment was for around £300,000, a record sum.

Michael Scott worked in a furniture store. While he was absent on sick leave he disclosed his HIV status. He was only allowed to return to work on condition that he transferred to duties in the warehouse, where he had to wear a boiler suit and surgical gloves. He was threatened with dismissal if he did not comply.⁶

Scott commented to the media: “I was stripped of all my dignity and singled out because I was HIV positive. No one should be treated the way I was. It was completely and utterly degrading. I might as well have put on a pink triangle with a sign saying ‘AIDS, beware’.”

Scott took a case of constructive dismissal and disability discrimination to an employment tribunal, but made an out-of-court settlement just before the hearing. The payment was reported to be about £35,000.

An independent school dismissed a teacher after claiming that she had failed to complete her six-month probationary period to a satisfactory standard. But it had suspended her from her job after just three months on the grounds of her HIV status.⁷

The school claimed that the teacher's condition was a “danger to pupils and colleagues”, according to details released by teaching union the NUT, which represented the staff member. The school also informed an employment agency of her HIV status, which breached rules on confidentiality, the NUT said.

As well as £35,000 compensation, the teacher received a letter of apology and a reference. Neither the school, nor the teacher, was named because of an agreement signed at the time of the out-of-court settlement.