Advice for employers

NAT gratefully acknowledges the
support of the Trust for London(formerly the City Parochial Foundation)
who funded this resource.

HIV+Recruitment – Advice for employers

1

As a responsible employer you want to recruit
an effective high-quality workforce. This
will mean recruiting on the basis of ability
rather than discriminating against the best
candidates for unacceptable reasons. It will
also mean retaining good employees andensuring that they do not leave as a result of
prejudice or discrimination experienced in
the workplace.
One example of such unacceptable prejudice is discrimination on the basisof disability, which includes on the basis of someone’s HIV positive status.
This guide looks at one specific issue – the recruitment process – and has
been updated in light of changes in the Equality Act 2010 which came into forcein October 2010. It contains information to advise on how to avoid discrimination and provide a fair, safe and supportive process through which you canselect the best candidate for the job.
This guide is not a substitute for professional legal advice, but it does provide
pointers both to the requirements of the law and to agreed best practice which
will help you in recruiting a high-quality and diverse workforce suitable foryour needs.

Revised June 2012

2

Legal protection fromdiscrimination
The Equality Act 2010, which
supersedes the Disability
Discrimination Act (DDA) 1995 and2005, protects disabled people fromdiscrimination at work and gives
them the right to ask for ‘reasonableadjustments’ – this means removing
barriers which may prevent disabled
people from being able to undertake
aspects of a job.1
Because of the original definitionof disability within the Disability
Discrimination Act 1995, people
who were HIV positive but who
had no symptoms were often notprotected by the law, even though
they experienced discrimination in theworkplace. As of 2005, HIV positive
people have been protected fromdiscrimination from the moment they
are diagnosed – a protection that
continues in the Equality Act 2010.
This legal protection applies tothe recruitment process and tojob applicants as well as to thosecurrently employed in your workforce.
The Equality Act 2010 also protects
people from discrimination if they
are mistakenly perceived to be HIV

positive or associated with someone
who is HIV positive. For example, if
the partner of someone living with HIV
was refused a job interview becauseof their partner’s HIV status, thiswould be unlawful discrimination.
Living and working with HIV
With the introduction of effective HIVtreatments (known as antiretroviraltherapy or ART), people living withHIV who are diagnosed early canremain well, have a normal life-spanand lead active, working lives. It
is a misconception to assume thatsomeone living with HIV will require
more time off than another memberof staff. NAT’s research into theemployment experiences of 1,800
gay and bisexual men living with HIV
found that there was no significant
difference in the number of sick days
HIV positive men took compared withHIV negative men. In fact, the majorityof respondents had taken
no HIV-related sickness days in thelast year.2
In almost all working environments
there is no risk of HIV transmission
through normal work contact for either
colleagues or the public.

The Equality Act 2010 does not generally apply in Northern Ireland, with a few exceptions. Northern Ireland has
separate equalities laws in place. For information contact the Equality Commission for Northern Ireland.

1HIV+Recruitment – Advice for employers

Sometimes there will be some HIVrelated needs which employers mayneed to respond to with ‘reasonableadjustments’. A reasonableadjustment is a change to theworkplace or work practices whichremoves a substantial (more thanminor or trivial) disadvantage that adisabled person might experience
because of their disability.
As the vast majority of people livingwith HIV need, if anything, only
minor changes in the workplace or inworking practice, most adjustments
have no cost, but the ‘Access to Work’scheme provides financial support
to help employers make reasonableadjustments to their working
environment.3 You can find out more
about reasonable adjustments andHIV in our companion publication
HIV@Work: Advice for employers.
Signposting good practice –encouraging good job applicants
It is important to be aware of,and sensitive to, the possible
apprehensions of people living withHIV applying for a job. Since thebeginning of the epidemic there
has been stigma and discrimination
against people living with HIV.

2
3

3

People living with HIV may notwish to disclose their status when
applying for a job because:they may not consider themselves‘disabled’, despite being protectedby the law
they may feel that disclosing theirstatus may make them vulnerable todiscrimination from the employer
they may feel concerned that
disclosure will not be kept
confidential, or could provoke
discrimination amongst colleagues.
Your recruitment process has totake account of such concerns andsensitivities and you should carefully
consider how you handle and respondto any information provided about
someone’s HIV status or otherdisability.
One important way to encourage
good applicants for jobs, including
those with a disability such as HIV
positive status, is clearly to signpost– and then act on – a commitment todiversity and equality.
Employers displaying the ‘Positive
About Disabled People’ or ‘Two Ticks’
logo as part of the job application
process have made a commitment
to employing disabled people andWorking with HIV: a summary of NAT’s employment research, NAT, 2009
Further information about the ‘Access to Work’ can be found at www.direct.gov.uk

4

this includes people living with HIV.
Many employers now have positive
statements about disability andHIV in their equality, diversity andemployment policies. Having clearly
signposted commitments to disability
equality on your website and in job
advertisements will give important
initial indicators to potential job
applicants of your determination not
to discriminate. Of course, any suchstatements have to be backed up by
the necessary actions if they are to
be meaningful.4
Another way to signpost good practiceis to have a specific HIV policy – ora long term conditions or equalityand diversity policy which specificallymentions HIV – clearly available
on your website. Such a policy will
send a clear message to potential
employees that they will not facediscrimination during any interactions
with a prospective employer.
Asking about disability
Until recently, there was no legal
impediment to an employer asking
questions about disability andlong-term health conditions in the
recruitment process. However,the Equality Act 2010 limits thecircumstances when you can ask a
4
5

job-applicant a health-related question
before they have been offered a job.5
Before a job offer is made, you can
only ask health-related questions in
the following circumstances:
To ask the applicant whether theyneed you to make any reasonableadjustments for the selection
process. (This is unlikely in thecase of people living with HIV, but
one example may be someone withHIV who sometimes experiencesside-effects after taking their 		
morning medication asking fora later interview slot).
It is best practice to clearly statethat responding to this question 		is voluntary. As stated above, many
people living with HIV are concerned
about discrimination and may not wish
to disclose their status or their needfor a reasonable adjustment until after
they have been selected for interview
or offered a job. An applicant is under
no obligation to disclose their HIV status
at this stage if they do not wish.

Further information about the ‘Two Ticks’ scheme can be found at www.direct.gov.uk
Or before the applicant has been included in a group of successful candidates to beoffered a job when a vacancy becomes available.

HIV+Recruitment – Advice for employers

To decide whether an applicant can
carry out a function that is essential(‘intrinsic’) to the job. (For example,
a construction company advertisingfor scaffolders may ask specificquestions about applicants’ mobility
and would need to know if an 		
applicant experienced vertigo, as
climbing scaffolding is intrinsic
to the job).
There are only very limited andspecific circumstances when it would
be appropriate to ask a question
related to this. You would not, forexample, be able to ask someone
about their HIV status because you
wrongly assumed that if they wereHIV positive they would be tired andunable to carry out the role. You can
only ask this question if, even withreasonable adjustments, somebody
with a certain disability could notcarry out a task that was essential
to the job.
To take positive action to assist
disabled people. (For example,
employers who are part of the twotick scheme referred to above havecommitted to interview all disabledapplicants who meet a job’s
minimum requirements – though
it is important to note that it is still
up to the applicant whether theychoose to disclose a disability tothese employers).

5

To monitor the diversity of people
applying for jobs (see later).
In circumstances where the job
has a genuine requirement for the
postholder to have a disability.
(For example, a counselling service
for people who are newly diagnosed
with HIV may have a requirementthat the applicants are themselvesliving with HIV).
If an employer asks a question about
an applicant’s health or disability
for a reason not given above andthe applicant is then rejected, theapplicant could then make a direct
disability discrimination claim to an
Employment Tribunal and it would
be for the employer to show that it
had not discriminated against thecandidate.
In addition, if such questions are
asked, an applicant can make acomplaint to the Equality and Human
Rights Commission which has thepower to conduct an investigation into
the employer’s recruitment processes.
To avoid this situation, do not ask
applicants questions about theirhealth or a potential disability unless
you are absolutely sure it is necessary
for one of the reasons above.

6

To avoid this situation,
do not ask applicantsquestions about theirhealth or a potential
disability unless you
are absolutely sure itis necessary for one ofthese specific reasons.
Reasonable adjustment questions
For those applying for a job, it is goodpractice to ask at an early stage ofthe recruitment process whether
the applicant needs any reasonableadjustment to attend an interview orfor any other aspect of the selection
and recruitment process.
It is best practice to ensure thatcandidates are asked if they requirereasonable adjustments during therecruitment process only after they
have been shortlisted for interview.
Changes to legislation in the Equality
Act 2010 mean that you can only
ask questions about reasonableadjustments an individual might
require in the workplace once thesuccessful candidate has beenoffered the job (see above).

Equal opportunities questions
Many employers use surveys orquestionnaires to assess how diverse
a workforce they have and how
they are performing as an employer
against standards of equality andnon-discrimination. In relation to therecruitment process, any questions
need to be sent on a detachable
form to all job applicants along withthe application form, with a clear
statement that it is optional whether
or not to respond. There also
needs to be a stated commitment
to confidentiality, ensuring that theapplicant knows that any information
provided will not be used as partof the selection process. It is goodpractice to separate the form from theapplication prior to short-listing.
References
When requesting references forcandidates, be careful not to ask
specific questions about health or
disability which may result in a former
employer disclosing somebody’s
HIV status without that individual’s
consent.
Referees should not mention
someone’s HIV status in thereference, and in most cases, theinclusion of such information could
contravene the provisions of theHIV+Recruitment – Advice for employers

Data Protection Act. If you do receive
such unsolicited information, you
should ensure that your subsequentactions are not discriminatory.
Candidates, even those who are
unsuccessful, have a right to ask toaccess any information held about
them by an organisation, including
any references received in connection
with a potential role. They are entitledto ask you to see the referencesthat their former employer(s) havesent you.
Questions when you interview
As set out above, you cannot ask
about an applicant’s health during
an interview unless specific physicalfitness or health-related requirements
are a necessary criterion to do the job.
However, should their HIV positive
status be raised in interview by a
job applicant, it will be important tobe sensitive, assuring the candidatethat you are an equal opportunities
employer, that you never discriminate
on grounds of disability or HIV status,that you are always prepared tomake reasonable adjustments in theworkplace and in working practice,and that you will keep any information
they provide confidential.

7

Questions when you offer a job
Once you have taken the decision
to appoint someone, you mightwant to know if you need to makeany reasonable adjustments in theworkplace relating to disability for theemployee to perform to the best of
their ability. It would be appropriate to
ask this question once the applicant
has accepted the job offer, assuring
the person of the confidentiality ofall personal information. It is a goodidea to offer the opportunity for further
discussion with Human Resources
and/or Occupational Health ifavailable, or on a confidential basiswith an appropriate member of staff.
More information about reasonableadjustments and other things to
consider when employing staff livingwith HIV is available in our companion
publication HIV@Work: Advice for
employers.

8Sick leave and disability leave

Sick leave is time off related to illness. Individual
employers will have their own policies related tosick leave.
Disability leave is time off for a disability-related
reason. It is distinct from sick leave and is one typeof reasonable adjustment an employee with HIV may
request. It may be planned in advance, for example
to attend clinic appointments, but it doesn’t need tobe. It isn’t sick leave, so the employee doesn’t need
to be unwell to request disability leave, as long as
the absence directly relates to managing their HIV.
Disability-related absence
Some employers may wish to findout about the past sickness absence
record of the successful job applicant.
Remember, you can only ask thesequestions once a job offer (conditionalor unconditional) has been made.
It is good practice when considering
past absence records (and indeed
when recording employee absence)
to make a distinction between
disability-related absence andsickness absence (see box). Bothreferees and job applicants may wellvary in whether and how they provide
information on disability-related
absence. It is good practice for you

to make clear in requesting
information on sickness absence thatyou are not asking for information
on absence related to disability. If
disability-related absence is brought
to your attention, it should beconsidered separately from sickness
absence.
You should not assume that pastdisability-related absence is boundto recur. The absence could, forexample, have been caused by a
failure of a past employer to provide
reasonable adjustments, or theapplicant’s condition might now havestabilised or be better managed.
For people living with HIV, there areHIV+Recruitment – Advice for employers

two main ‘flash points’ when HIV ismore likely to impact on their work
life: when they are diagnosed; andwhen they start or switch treatment.
You need to ensure that you are notmaking discriminatory and unlawful
judgements on the basis of someone’s
past absence record.
You should always offer applicants
to whom you have offered a job
the opportunity to discuss any
relevant health-related issues with
Occupational Health or anotherappropriate member of staff on aconfidential basis at an early stage.
Gaps in employment history
The same principles apply to timespent not in paid employment fordisability-related reasons. Someone
living with HIV might have had timeaway from paid employment forreasons relating to their HIV status,
for example, coming to terms with
their diagnosis or adjusting to starting
HIV treatment.6
If you choose to ask about these
periods away from the labour market,
you may wish to preface this withassurances that if the absences are
due to disability, the job applicant will
not be discriminated against.
6
7

9

A better approach may be to ask whatsort of activities were pursued by theapplicant during gaps in employment,
rather than asking for the ‘reason’why they occurred. Remember, you
cannot ask an applicant if periods
away from the labour market are
related to a period of ill health ora disability (see above).
Note that for someone living with
HIV, responding to questions about
gaps in a CV might itself be difficult.
Questions need to be handled
sensitively, as some people may notwish to disclose their HIV positive
status in an interview.
Medical questionnaires
Except in very specific circumstances,where there are health-related
requirements that are essential to ajob, employers cannot ask applicants
to fill in medical questionnaires as partof their recruitment process prior tothe offer of a job.7
Once a job offer has been made,an employer can ask the successful
applicant to complete a medical
questionnaire. However, suchprocedures may provoke fears or
suspicion of discrimination, andemployers should consider whether

Working with HIV: a summary of NAT’s employment research, NAT, 2009
Or prior to inclusion in a group of successful candidates to be offered a job
when a vacancy becomes available.

10

they are entirely necessary forthe role.
If after you have offered somebody
a job, their HIV status is brought toyour attention, it must be treatedas a disability, and subject to all theprotections of the Equality Act 2010.
Any discriminatory behaviour arising
after a medical questionnaire (such as
withdrawing a job offer on the basisof their HIV status) would contravene
the Act.
In asking medical questions, you
should make clear that individuals arewelcome to discuss any health-related
matters in person and in confidencewith an appropriate member of yourstaff, either in addition to or as analternative to filling in a questionnaire.
Some people living with HIV prefer tobe able to explain in more detail how
they are successfully managing theircondition and be on hand to answer
any questions, rather than rely on
a form.

Respecting confidentiality
The Data Protection Act (DPA) 1998
regulates how personal information isprocessed and protects all personalsensitive data disclosed by a job
applicant or employee.8 This includes
a physical or mental health condition.
Every responsible employer shouldhave procedures in place to ensurethat personal information about
employees is properly handled. The
Information Commissioner’s Officehas produced a code of practice for
employers and can also advise where
people believe their rights may havebeen infringed.9
The Data Protection Act 1998
specifies that written consent isneeded for personal sensitive
information to be passed on. This
includes racial or ethnic origin,political opinions, religious or otherbeliefs, trade union membership,
physical or mental health condition,
sex life, criminal proceedings orconvictions.
Depending on individual
circumstances, you might need todisclose this information to third
parties. In this case, only personnel

89The term ‘personal sensitive data’ has a technical definition within the Data Protection
Act (1998). See www.ico.gov.uk for more information.
The Information Commissioner’s Office ‘The Employment Practices Code’ (2005) isavailable at www.ico.gov.uk

HIV+Recruitment – Advice for employersthat ‘need-to-know’ should be
informed of the situation. In practice,
this will tend to include the Human
Resources Manager (where there
is one) or the person in chargeof implementing any reasonableadjustments.
The Data Protection Act states that
explicit consent should be soughtfrom employees when sensitive
information, particularly relating tohealth information, is processed byan organisation. Sometimes you willneed colleagues’ co-operation to
implement a reasonable adjustment,
but confidential details must not be
disclosed without the consent of theemployee concerned.
Some final thoughts
The person living with HIV could
be your best job applicant – notdiscriminating is ensuring the best
opportunities for that person andyour workplace.
You should realise, given the factthat there is a social stigma
attached to HIV, that issues of
disclosure of disability are more
complicated for people living withthis condition.
The issue of disability has noplace in assessing the suitability

11of a candidate for employment.
While it may be legitimate to ask
about someone’s disability or longterm health condition for disability
monitoring purposes or in order
to arrange reasonable adjustments
for the interview process, theseprocesses should be ‘HIV friendly’.
The Equality Act 2010 means it isillegal to ask a candidate about theirhealth or disability before the offer ofa job has been made (except in a
few very specific circumstances).
If you decide to raise health or
disability related enquiries after
you have made a job offer to thesuccessful applicant, they should bedone fairly and transparently so thatpeople living with HIV experience afair and non-discriminatory process.
Having a workplace policy thatspecifically addresses the needsof people living with HIV is an
important first step in recruiting,retaining and supporting this groupof people.
For more information about employing people
living with HIV see our guidance
HIV@work:advice for employers, available atwww.nat.org.uk.
For contact details for further information,
advice and resources see the centre spreadin this booklet.

Equality and Human Rights
Commission (EHRC)
The EHRC have a statutory remit topromote and monitor human rights;
and to protect, enforce and promoteequality across the seven “protected”
grounds - age, disability, gender,
race, religion and belief, sexual
orientation and gender reassignment.

Trade Union Congress (TUC)
The TUC has 58 affiliated unions
representing 6.2 million working
people from all walks of life. The TUC
campaigns for a fair deal at work andfor social justice at home and abroad.

Helpline• England: 0845 604 6610
• Scotland: 0845 604 5510
• Wales:0845 604 8810
www.equalityhumanrights.com

Acas (Advisory, Conciliation andArbitration Service)
Acas has a range of services which canhelp individuals or groups of employees
to avoid or resolve problems and disputes
in the workplace. The Acas helpline offers
free, confidential and impartial guidanceon employment rights and workplaceissues. They provide general information
on employment rights and responsibilities
and can also help employees andemployers who are involved in an
employment dispute to identify

In Northern Ireland, you can contact the
Equality Commission for Northern Ireland.
Enquiry Line : 028 90 890 890
www.equalityni.org

www.tuc.org.uk

14

Further information, advice and resources

practical ways of sorting out the problem.
Helpline: 08457 47 47 47
www.acas.org.uk

Community Legal Advice
Community Legal Advice is a free andconfidential advice service paid for bylegal aid.
Helpline: 0845 345 4 345
www.direct.gov.uk

Disability Law Service
The Disability Law Service is a national
registered charity that provides confidential
and free legal advice to disabled people
and their families, carers and advocates.
Advice line: 020 7791 9800
www.dls.org.uk

Advicenow
Advicenow is an independent, notfor-profit website providing accurate,
up-to-date information on rights andlegal issues.
www.advicenow.org.uk

Information Commissioners Office
The Information Commissioner’s
Office is the UK’s independent
authority set up to uphold informationrights in the public interest, promoting
openness by public bodies and data
privacy for individuals.
Helpline: 0303 123 1113
or 01625 545745
www.ico.gov.uk

Advice for businesses
Free information, support and practicaladvice for businesses of all sizes:

THT Direct
Provides information, support andadvice on HIV and sexual health.

 ngland- Business Link
E
Helpline: 0845 600 9 006
www.businesslink.gov.uk

THT Direct: 0845 1221 200
www.tht.org.uk

Scotland- Business Gateway
Helpline: 0845 609 6611
www.bgateway.com

NAM aidsmap
NAM’s e-atlas can direct you to an HIV
support organisation in your local area.

Wales – Flexible Support for
Business
Telephone: 03000 6 03000
fs4b.wales.gov.uk

www.aidsmap.com

Northern Ireland – NI Business Info
Telephone: 0800 027 0639
www.nibusinessinfo.co.uk

The largest national pan-disability
organisation in the UK led by disabled
people which campaigns for disability
equality and human rights.

Disability Rights UK

www.disabilityrightsuk.org