There are very few cases related to HIV which have reached an employment tribunal. In those that have, the responsibility of the employers to follow proper investigation and procedures have been stressed:

• In 1987 a projectionist was sacked because fellow workers knew he was gay and were worried that he might have AIDS. The tribunal upheld the decision as fair. The case went to the Employment Appeals Tribunal (EAT) who advised that the employer should pay compensation. The EAT decision was based on the fact that the company had not held a proper inquiry.
• In 1987 two solicitors at North Lambeth Law Centre refused to work with another solicitor because he was gay and they thought he would therefore have AIDS. After an internal inquiry both were sacked and an tribunal found their dismissal fair.

Although there are few related tribunal cases, many people affected by HIV have had problems in employment. One of the reasons why there have been so few cases reported is that many were settled out of court, or an employer offered a sum of money on termination of employment which was more than the tribunal was likely to award as compensation. The Disability Discrimination Act and the Human Rights Act now give much greater scope for people to challenge HIV-related discrimination.

It is worth noting that in 2000 one of the highest sums awarded under disability discrimination was an out of court settlement to a Mr Mark Hedley. Mr Hedley sued the supermarket Aldi, alleging disability and sex discrimination, after the firm made disputed claims that staff did not want to work with him and profits would suffer. The supermarket settled for an estimated £300,000.

Reasons for not requiring testing

The British Government, the World Health Organization, the International Labour Organization and the Council of Europe are amongst many who have stated clearly that there are no grounds for testing people for HIV either pre–employment or in employment. However, it would seem that until a law is passed to forbid such discriminatory practices then certain companies will continue to ignore advice.

Confidentiality

The contract of employment has within it an implied duty of trust and confidence for both employer and employee. The duty of trust and confidence includes a duty for both employer and employee not to disclose confidential information obtained in the course of employment.

Employers are not legally entitled to disclose that an employee is HIV-positive unless the employee consents. The only exception to this rule is if it could be claimed that it was in the public interest for others to know – this is a standard defence to breach of confidence claims.

Even when disclosure without consent is justified, it should only be to those who have a real need to know the information. Disclosure should be on the basis that the information is strictly confidential and should not be further disclosed. Because disclosure of a person's HIV status may have serious consequences, the employer would probably be justified in treating such a disclosure as a serious disciplinary offence.

The Data Protection Act 1998 (DPA) gives extra weight to confidentiality. There are two sections of the DPA that are specifically relevant in relation to HIV: the first section is Sensitive Personal Data; the second section is Rights in Relation to Health Records.

The DPA gives strict rules to ensure that information about an individual is only used for the specific purposes for which it is intended. This has strong implications for maintaining confidentiality. The devastating effect that breach of confidentiality can have in relation to HIV means that employers should act scrupulously to ensure that they do comply with the Act.

Laws on confidentiality and HIV are further strengthened in Health Authorities by the National Health Service (Venereal Diseases) Regulations 1974. Section 1 1974.9 places Health Authorities, and by DHSS guidance, Local Authorities too, under an obligation to maintain confidentiality in relation to sexually transmitted infections.

The Human Rights Act 1998 came into force on 2^nd October 2000. The right to privacy is one of the provisions of the Act, and this again gives extra strength to laws on confidentiality.