The Disability Discrimination Act 1995 gives disabled people rights in the areas of employment, obtaining goods and services and buying or renting land or property.

It is within the category of progressive conditions that people who are HIV-positive and symptomatic are explicitly covered by the Act. People with progressive conditions are regarded as disabled under the Act providing that, as a result of the condition, the person has an impairment which has or has had an effect on their ability to carry out normal day–to–day activities. However, the effect on day–to–day activities does not have to be a substantial effect.

The employment provisions of the Act came into force in December 1996. In April 2000, the Disability Rights Commision was launched. The commission has the power to enforce the DDA. and further information on the act can be found on their website: http://www.drc-gb.org/

Complaints about discrimination

Disabled people who feel that their employer has discriminated against them can complain to an employment tribunal. There is no qualifying period of employment needed to take a case of discrimination to an employment tribunal. Claims must usually be made within three months of the discrimination taking place.

The Act explicitly outlaws victimisation of disabled people. Any victimisation of or discrimination against a disabled person is the employer's responsibility – regardless of whether or not it occurred with the employer's knowledge or approval.  http://www.acas.org.uk/

Recruitment

An employer will have a defence against a discrimination claim only if they can justify that the less favourable treatment of a disabled person was for a reason which is material to the circumstances of the particular case and substantial. That is, the employer must show that the reason for treating a disabled person differently was genuinely relevant in a given situation. For example, an employer who rejects outrightly a job applicant because they disclose on their application form that they have had an HIV-related illness would not usually have a defence to their actions.

Always seek sympathetic legal advice before disclosing your HIV status to an employer or potential employer.

Victimisation and harassment

Under the DDA, people who are HIV-positive can now take claims of discrimination to an employment tribunal if they are being discriminated against or have been sacked because of their status.

It is the employer's duty to ensure that discrimination does not occur. It is therefore in the employer's interest to ensure that other employees do not victimise or discriminate in any way against colleagues who are HIV-positive.

Ill health retirement and dismissals

If a person is genuinely not able to continue to work for an employer, the most beneficial option for the employee is for the employer to offer some package of early retirement on ill health grounds. The package the employer is able to offer will, of course, depend on the size and resources of the organisation.

If dismissal is the only option, then legally the dismissal must come under one of two headings: either on health grounds after proper medical enquiry or for poor attendance.

If a person is dismissed because they are unable to do the job the employer must have sufficient evidence upon which to base the decision. This involves, preferably, both a report from the employee's doctor and an examination by a doctor on behalf of the employer.

If the employer makes a decision to dismiss on the grounds of poor attendance due to a succession of minor illnesses, this is a reason related to conduct. Therefore, the employee should be given warnings as appropriate, and an opportunity to improve. After that, if there is no improvement or explanation then the employer is eventually entitled to decide that enough is enough. However, no employer should consider dismissal without full consideration of the DDA Section 6 adjustments and modifications. If the employer is considering a dismissal on the grounds of poor attendance (reason related to conduct) then it is very important that flexible working arrangements have been fully considered. In the examples of adjustments that could be made under section 6, “allowing him to be absent during working hours for rehabilitation, assessment or treatment” is explicitly stated in the DDA. 

Employer's duty to make a reasonable adjustment

Section 6 of the DDA states that an employer must take reasonable steps to prevent any physical feature of the premises, or any working arrangements that are made, from causing a substantial disadvantage to a disabled person.

The duty to make adjustments arises when a disabled person is placed at a substantial disadvantage as either a job applicant or as an employee. The duty to make adjustments would only arise at recruitment if the employer knew or could be reasonably expected to know that a disabled person was applying for a job.

Rights for carers

The Employment Relations Act 1999 gives a right to employees to take reasonable time of during working hours to attend to a dependent. The definition of dependent in the Act includes: a spouse, a child, a parent and: 

• a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or border" (Schedule 4, Part II, Section (3) ).

An employee is entitled to time off during working hours in order to take action which is necessary:

• (a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,
• (b) to make arrangements for the provision of care for a dependant who is ill or injured,
• (c) in consequence of the death of a dependant,
• (d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or
• (e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

In order to take time off, the employee must tell the employer, as soon as is reasonably practical, why she or he is going to be absent and how long they expect to be absent. It is recognised, however, that the employee may not be able to say how long they are going to be absent until they have returned to work.

The Act does not specify that time off for dependents should be paid leave, neither is there an attempt to quantify reasonable time off. The law does not state that the employee has to tell their employer the cause of an illness or injury merely the reason that time is needed in a specific circumstance.