The Disability Discrimination Act (DDA)

The Disability Discrimination Act 1995 provided some limited protection against discrimination faced by persons with HIV and AIDS, but this was restricted in scope because the Act did not automatically apply to a person who was HIV-positive. This was changed by the Disability Discrimination Act 2005, which updated and amended the 1995 Act. As a result of the 2005 Act, a person with HIV is “deemed” to be a disabled person, from the point of diagnosis, for the purposes of the legislation.

The Act protects disabled persons against discrimination in a variety of fields, including employment, the provision of goods, facilities and services, the disposal of premises (which includes granting leases or sub-leases), education and public transport.

In respect of employment, an employer will be said to discriminate against an employee if “for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others” and “he cannot show that the treatment in question is justified”. In most cases, it is unlikely that an employer would be able to show that less favourable treatment could be justified on the basis of HIV infection alone. For example, in a case in 2005, an HIV-positive carer - who worked with men with aggressive behavioural difficulties - was dismissed by his employers, who argued that there was a risk that he could be bitten by clients who could then be infected with HIV. He took action under the Disability Discrimination Act, arguing (amongst other things) that this risk was negligible, given that cases of HIV being transmitted by biting are exceptionally rare. A tribunal ruled in his favour.

In respect of the provision of services (including the provision of goods or facilities), it is unlawful for a service provider not to provide to a disabled person services which he provides to members of the public, or to discriminate in the standard of service or the terms on which the service is provided. Again, proving discrimination requires that the service provider cannot show that the less favourable treatment is justified.

The Act also places persons such as employers and service providers under duties to make reasonable adjustments to avoid disadvantaging persons with disabilities. Where these duties are not complied with, the failure to do so is not a basis for arguing that the less favourable treatment of the disabled person was justified.