Eleanor Briggs of NAT explains how the Equality Act will improve protection for people with HIV in the workplace.
Since 2005, people living with HIV have had legal protection from discrimination at work. But research published last year by NAT (National AIDS Trust) and City University found that a third of people living with HIV in work were unaware of the protection available to them. With the Equality Act set to increase such protection, it is more important than ever that people are aware of and can exercise their rights.
A new legal landscape
The Equality Act was passed by parliament in April and most of its provisions are due to come into force from this October. It would be impossible to describe here the whole Act and accompanying Codes of Practice – that together cover more than 1000 pages. Instead, this article looks at the changes that will have most impact on people living with HIV from an employment perspective.
Legal protection from discrimination is not new for people living with HIV. The first Disability Discrimination Act came about in 1995. Doubts about whether all people living with HIV were covered by this Act came to an end when the Disability Discrimination Act 2005 (DDA 2005) explicitly stated that anyone living with HIV is automatically treated as disabled under the Act.
In a further step forward, the new Equality Act will bring together and strengthen all discrimination law introduced over the last four decades, making it simpler for employers and employees to understand their responsibilities and rights. Legislation covering age, disability, race, sex, sexual orientation, gender reassignment, marriage, civil partnership, pregnancy, maternity, religion and belief has been brought together into one streamlined Act.
The DDA 2005 protects people from discrimination in employment (and will continue to do so until the new Equality Act comes into force). This includes direct discrimination, failure to make reasonable adjustments, treating disabled people less favourably and subjecting disabled people to harassment or victimisation. But what does this mean for someone living with HIV at work and how will the new Equality Act extend these rights?
An employer does not put forward an HIV-positive person for a promotion because they wrongly assume that person would not be able to meet the demands of the role because they have HIV.
This is an example of direct discrimination – when someone is treated less favourably because of their disability. The Equality Act will continue to prohibit direct discrimination.
An employer organises a team-building and training event in a country where there are entry restrictions for people living with HIV, putting people living with HIV at a particular disadvantage because they may not be able to attend.
This is an example of indirect discrimination – discrimination that occurs when a disabled person is disadvantaged by a decision which is applied to everyone but that puts disabled people at a disadvantage when compared to non-disabled people. For the first time, the Equality Act prohibits indirect discrimination in relation to disability.
Discrimination arising from a disability
Someone living with HIV is asked by their employer to move to a floor where there are no toilets, causing them problems as the side-effects of their treatment mean they need immediate access to a toilet.
This is an example of discrimination arising from a disability (which replaces disability-related discrimination in the DDA 2005). This occurs when an employer treats a disabled person unfavourably because of something arising in consequence of the disabled person’s disability. This differs from indirect discrimination, as unlike indirect discrimination, there is no need to show that the practice has been applied to other people.
An employee tells their manager that they have recently changed HIV medication and have had some difficulties with fatigue and other treatment side-effects. The manager is sympathetic and allows the employee to start work later, making it easier for them to continue to work whilst adjusting to their treatment.
Whilst some aspects of employment law will change when the Equality Act comes into force, others remain largely the same. Since 2005 employers have had a duty to make ‘reasonable adjustments’ to alter features of the workplace that put people living with HIV at a substantial disadvantage. These can include changes to the physical workplace or working practices. As the example above shows, such changes can make a real difference to people living with HIV and make the difference between struggling to manage and working in a comfortable and accommodating environment.
My confidentiality about my HIV status was breached at work, and colleagues began to treat me differently. I began to feel excluded and uncomfortable in the office and then one day found HIV-related graffiti on my in-tray.
Case study, NAT
NAT’s employment research discovered that a third of survey respondents were not aware of their rights at work. And even of respondents who were aware of the DDA 2005, almost a third did not know that if they had disclosed their status at work they were entitled to ask for reasonable adjustments. Without reasonable adjustments, some faced difficulties managing their condition at work, as this person explaine:
“It was very, very difficult to get time off. I ended up having to ask my work colleagues, to say, look I’m unable to come in on this day, could we swap so that I’ll cover you if you’ll cover me, that kind of thing.”
Of those aware of their rights to ask for reasonable adjustments, nearly a third had asked for some kind of change to their working life. The type of adjustments requested were straightforward, usually involving flexibility around working hours – 67% of people requested time off to attend clinic appointments, 52% asked for changes in hours and 50% asked for a change in start and/or finish times.
These types of adjustments are relatively easily accommodated by most employers, illustrated by the fact that nearly 90% of those that had requested reasonable adjustments at work had had these fully or partially granted. This is encouraging, meaning that for the vast majority of employers it is possible to accommodate someone living with HIV in their workforce without huge expense or difficulty.
“My confidentiality about my HIV status was breached at work, and colleagues began to treat me differently. I began to feel excluded and uncomfortable in the office and then one day found HIV-related graffiti on my in-tray.”
This case study from our employment research is an example of HIV-related harassment. Harassment is unwanted conduct that has the effect of violating a person’s dignity or creating an intimidating, hostile or degrading environment.
It is important to remember that an employer is liable for acts of discrimination, harassment or victimisation committed by their employees. In the case study above, unless the employer could have shown that they had taken ‘all reasonable steps’ to prevent this type of harassment, they would be liable. This can even extend to work-related social functions outside working hours and premises – so an employer could be liable for the harassment of an HIV-positive member of staff which took place at work drinks in a local pub.
The Equality Act also extends protection for people living with HIV outside the workplace. For the first time, disabled people will be protected from harassment when accessing goods and services.
Recruitment – an important new protection
The Equality Act will bring in changes not only for those in work, but for those looking to go back to work. For the first time, and after extensive campaigning, the Act will prohibit the use of pre-employment health questionnaires. Until now, employers have been able to ask job applicants whether they have a disability, are taking medication or have a medical condition even if it had no relevance to the job they were applying for. Even though discrimination in recruitment was prohibited under the DDA 2005, unscrupulous employers could use responses to filter out applicants with a disability such as HIV and it would be very hard for the disabled person to prove that this is why they were unsuccessful in their application.
The Bill did not originally contain this new prohibition and NAT worked hard, in partnership with other disability organisations, to ensure this made it into the final Act. Why was this necessary? Our employment research revealed that nearly a fifth of HIV-positive respondents were specifically asked about their HIV status on a pre-employment health questionnaire and almost three-quarters reported that this made them feel uncomfortable. These questionnaires had the negative effect of putting people off applying for new positions:
“I was going to apply for a different department and saw the form and thought sod that, I’m not, because I think it specifically asked about HIV and I thought no I’m not.”
So from October 2010 when the Equality Act will come into force, employers will no longer be able to ask these questions at this stage in the recruitment process.
New types of protection
“Being from an ethnic background, being black, is one thing...being from an ethnic minority and being black and having HIV, that’s another problem.”
The Equality Act will introduce the concept of ‘combined discrimination’. This is when a person is treated less favourably than others because of a combination of two characteristics. This new aspect of the Act may assist people living with HIV who often face discrimination because of their ethnicity and/or sexual orientation as well as their HIV status, as the quote from our research highlights.
In another step forward, the Act will introduce protection from discrimination based on ‘association or perception’. The stigmatised nature of HIV means that many people who live with or care for people living with HIV face discrimination. In addition, groups particularly affected by the virus, such as gay and bisexual men, can experience discrimination because they are wrongly assumed to be HIV-positive. What will the new protection mean in practice?
The Equality Act should be enthusiastically welcomed. legal protections against discrimination at work are vital, not least because they prevent employers from discriminating in the first place.
An employee whose partner is living with HIV is not invited to staff parties because of her partner’s status – under the new Act she could take a case of discrimination because of association.
A gay man is not promoted by his employer because the employer wrongly assumes he is HIV-positive – under the new Act this would be discrimination based on perception.
NAT originally called for this to be included within the DDA 2005, so we were particularly pleased when the Equality Act extended discrimination law in this way.
The Equality Act will also make some improvements to the tribunal process. The Act extends the power of employment tribunals to make recommendations that employers take specific steps to change their employment practices even where they do not affect the disabled claimant. This is a significant improvement, as under previous legislation a tribunal could only do this if the disabled claimant would benefit. In many cases, the claimant was no longer employed by the employer, meaning that such recommendations were rarely made and discriminatory practices continued until they were challenged again.
Under the new Act tribunals will be able to recommend that an employer takes steps such as implementing a harassment policy, providing equality and diversity training or introducing more transparent recruitment and promotion processes. If the employer then fails to comply with these recommendations, they can be ordered to pay compensation and it can be taken as evidence in any later cases against the same organisation.
How important is protection from discrimination?
Last summer NAT published the findings of its research looking into the experiences of people living with HIV at work. This study, carried out in partnership with City University, involved focus groups with heterosexual black Africans and gay and bisexual men as well as an online survey of 1830 HIV-positive gay and bisexual men. The picture from the research was encouraging, with over half of survey respondents saying HIV had no impact on their working lives:
“I just don’t feel it’s relevant to my work. My line manager knows, she knows when I’m not there where I’ll be and that I do the job to the best of my ability and it doesn’t affect my work at all.”
However, of those who had disclosed their HIV status to someone at work, a fifth had experienced HIV discrimination. More than a third of respondents who had disclosed their HIV status and experienced discrimination believed they had lost a job as a result. In other words, discrimination is still an issue in the workplace making these legal protections immensely important.
We also asked whether people who had experienced discrimination had sought redress or used their rights under the DDA 2005. We found that a third of HIV-positive respondents made a complaint when they experienced discrimination. Of these complaints, 57% were only partially resolved or not resolved to the satisfaction of the respondent (21% were still ongoing at the time of the research and 22% were resolved). The fact that only a third of employees who had experienced discrimination had gone on to pursue a grievance claim is in itself evidence of the need to support more people living with HIV through the complaints and tribunal processes.
The Equality Act should be enthusiastically welcomed. Legal protections against discrimination at work are vital, not least because they can prevent employers from discriminating in the first place. But legislation alone will not end HIV-related discrimination at work and in recruitment. That is why NAT is taking steps to ensure that more accurate information about HIV at work is available for employers, alongside better support to help people living with HIV understand and access their rights. We need to break down the remaining barriers that stop some people living with HIV making a valuable contribution to the workforce.
NAT will be updating its employment resources before the Equality Act comes into force in October 2010. To read NAT’s employment research in full or find out more about the Act go to www.nat.org.uk.