Advice for employers

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

HIV@ Work – Advice for employers

As a responsible employer, you will want toensure that your employees are treated fairly
and that those living with HIV are protectedfrom discrimination in the workplace.
Improvements in HIV treatment mean thevast majority of people living with HIV willcontinue to form a critical part of your ‘talentpool’ and as an employer, you will want toensure that you are able to attract, develop
and retain these employees.
This guide looks at managing employees living with HIV. It sets out how you
can avoid unlawful discrimination and ensure that you provide appropriate
support for staff. It 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 to support valued employees who are HIV positive.
For advice specifically about the recruitment process, please see NAT’s
companion guide HIV+Recruitment: Advice for employers.

Revised June 2012

1

2

Working with HIV
The introduction of effective HIVtreatment (known as antiretroviraltherapy or ART) means people livingwith HIV can have a normal life-spanand lead active, working lives.
There are two main ‘flash points’ whensomeone’s HIV is more likely to impact
on work life: when they are diagnosed;
and when they start or switch treatment.1
Outside of these times, most employeeswith HIV will only need very occasional
reasonable adjustments at work, suchas flexible hours or some leave for aclinic appointment.
NAT carried out research inpartnership with City University into
the employment experiences of people
living with HIV.2 This included a surveyof over 1,800 HIV positive gay men
in employment. The research foundthat respondents were employed
across a diverse range of sectors,
professions and trades. Over half
said that HIV had no impact on theirworking life and the data showed that
there was no significant difference inthe number of days leave HIV positive
men took compared with HIV negative
men for non-HIV related illness. In
fact, the majority of respondents
had taken no HIV-related sickness

1
2

days in the last year. It’s importantto remember that people living withHIV are able and entitled to work
just like anyone else. There is norisk of HIV transmission througheveryday work contact for either
colleagues or the public. In order toavoid unnecessary operational andreputational risk, you need to obey
the law in your employment practices,
dealing with people fairly and without
discrimination. This will also ensurethat you retain and support the best
workforce you can, which may wellinclude someone living with HIV.
HIV and equality legislation
As an employer managing employees,
you are subject to equality legislation.
This applies in the UK,3 regardless ofthe size of your organisation or thesector you work in.
The Equality Act 2010 protects
disabled people at work fromdiscrimination. For people living with
HIV, this applies from the moment
they are diagnosed. The Equality
Act 2010 replaces the Disability
Discrimination Act 1995 and 2005.

Working with HIV: a summary of NAT’s employment research, NAT, 2009
Working with HIV: a summary of NAT’s employment research, NAT, 2009
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.

3HIV@ Work – Advice for employers

Many of the rights
contained within the
Disability Discrimination
Act are retained within
the new Act, but it
also provides disabled
people, including thosewith HIV, with some
additional protection.
As an employer it would be unlawful
to treat someone living with HIV ina worse way than other employees
because of their HIV status. This iscalled direct discrimination.
For example, you cannot refuse toallow an HIV positive member ofstaff to attend training because you
wrongly assume that because of theirdisability they will not progress or bepromoted. This is direct discrimination
owing to their HIV status.
You must also be aware that bytreating all your staff in the same
way you could still discriminate
against staff members with HIV.
Some management styles or ‘blanket’
policies may have a worse impact on
people living with HIV. The Equality
Act also protects against such casesof indirect discrimination.

3

An example of a ‘blanket’ humanresources policy which could
discriminate against people living with
HIV is a promotion policy which requires
staff to spend extended periods of timeworking abroad in order to qualify foran executive role. Someone living withHIV may be willing and able to do thiswork, but due to HIV-related immigration
restrictions in certain countries may
not be allowed to enter or stay for thenecessary period of time. To denypromotion on these grounds alone
would be discriminatory unless you
could clearly justify why the policy wasessential for the role or your business.
It is also unlawful if a management
practice or workplace policy resultsin unfavourable treatment of anindividual member of staff livingwith HIV for a reason connectedto their HIV status. This is called
discrimination arising from disability.
This concept is similar to, but legallydistinct from, indirect discrimination.
Discrimination arising from disability
only applies if you know, or could bereasonably expected to know, about theemployee’s HIV status.
As an employer it would be unlawful
to treat an employee worse thansomeone else because they areassociated with a person livingwith HIV, for example if their partner
or relative is HIV positive.

4

Such behaviour is known asassociative discrimination. Similarly,
you must not treat someone differently
because you assume they are HIV
positive, for example because they
are gay or from a country with ahigh HIV prevalence. Discriminating
against someone in this way is known
as perceptive discrimination.
In addition, as an employer, you must
protect your staff from harassment
and also make reasonableadjustments to assist disabled
employees at work. These two areas
are looked at in more detail below.
Finally, you must not treat an employee
badly or victimise them because
they have made a complaint about
being discriminated against or helped
somebody else make a complaint.
For more detailed advice on the different
types of discrimination in the Equality
Act 2010 contact the Equality and
Human Rights Commission (details
provided in the ‘Further information,
advice and resource’ section).

Making people feel comfortable in
the workplace
The vast majority of people living withHIV have a very positive workplace
experience, and just get on with theirjob like any other employee. As an
employer it is very unlikely that you
will ever face a discrimination case to
do with someone living with HIV, but
it is important that you are aware ofyour legal obligations.
It helps to be aware and sensitive tothe possible apprehensions of somepeople living with HIV about disclosing
their status and managing theircondition at work. Since the beginningof the epidemic there has been stigma
and discrimination against people
living with HIV and some employees
may have concerns about how workcolleagues will respond if they decideto disclose their status.
You can help address these concernsand send out an important message
about your commitment to diversity
and equality by taking some simple
steps. Possible actions include:HIV@ Work – Advice for employers

Developing an equality and diversity
policy which makes clear yourcommitment to disabled people,
including those living with HIV
	Ensuring staff, particularly managers,
have equality and diversity training
which includes information about HIV
and how to sensitively manage staff
living with HIV (particularly issues
around confidentiality)	Helping to end stigma anddiscrimination by improving staff
knowledge about HIV (for example,
by marking World AIDS Day on
1 December.)

5

Reasonable adjustments
Equality legislation ensures that
disabled people have the same
access, as far as is reasonable,
to everything involved in doing a job
as non-disabled people. To ensure
this happens, employers must makereasonable adjustments to remove
barriers for disabled people, including
those living with HIV.
NAT’s employment research showedthat for the majority of respondents,
HIV had no impact on their working
life, but a small proportion of people
living with HIV did identify somereasonable adjustments that an
employer could make to assist themat work. In the vast majority of cases
these adjustments will be inexpensive
and easy to accommodate.
HIV medication can have someside-effects such as fatigue, nausea,
sleep disturbance and diarrhoea,
which can sometimes requirereasonable adjustments at work.
NAT’s research found that the mostcommon request for adjustments
were for time off to attend hospitaland clinic appointments, flexibility
in working hours and the request
to work at home occasionally. Most
employers would have little difficulty
accommodating the adjustments thatHIV positive employees might require.

6

If an employee asks you to makereasonable adjustments and you
do nothing, they could bring a claim
against you in an Employment
Tribunal. It is important to rememberthat the need to make an adjustment
for an employee is not a reason not
to promote them or dismiss them,provided the adjustment required isreasonable.

employee need them (and they arereasonable).
The duty to make reasonableadjustments also applies tothe recruitment process – formore information please see
NAT’s companion resource
HIV+Recruitment: Advice for
employers.

What is considered reasonabledepends on things such as the size
and type of your organisation. The
costs of any reasonable adjustment
for an employee living with HIV are
likely to be minimal. However, theGovernment scheme Access to Work
can help with extra costs where
it would not be reasonable for an
employer to meet these.4 You only
have to make changes if you know, or
could be reasonably expected to know,that an employee is a disabled person.
It is good practice to ensure that
information about how to accessreasonable adjustments is madeavailable to all staff at an earlystage of their employment. This willreassure them that you take a positive
attitude to assisting disabled people atwork and will respond appropriately torequests for adjustments should an

4Further information about the Access to Work scheme can be found at www.direct.gov.uk.

HIV@ Work – Advice for employers

Preventing harassment at work
Clearly an employer must take steps
to ensure their employees do not facediscrimination in the workplace. Aspart of this, you have responsibilities
around harassment at work. In the
Equality Act 2010 harassment isdefined as unwanted behaviour related
to a person’s disability which either
violates that person’s dignity or creates
an intimidating, hostile, degrading,humiliating or offensive environment.
Unwanted behaviour can include, forexample, written or spoken abuse (verbal
conduct), graffiti, physical gestures,
jokes, or pranks related to somebody’s
disability (non-verbal conduct).
Although you may not be the person
behaving in this way, you may beheld responsible for harassment of
disabled staff by people who workfor you unless you can show that you
took all reasonable steps to prevent
this happening. Make sure that you
make it clear to your staff that you will
not tolerate harassment of disabledcolleagues, including those livingwith HIV.

7

For example you could:	put in place a harassment policy(this might be part of a wider
equality and diversity policy)	make sure that the policy states clearly
that harassment will not be tolerated
and will be treated as a disciplinary
offence	inform staff about the policy andtheir responsibility in relation to it.
What to do if someone discloses
their HIV status at work
Changes to legislation in the Equality
Act 2010 mean that, except in very
specific circumstances, it is now illegal
for employers to ask people about
their HIV status before they havebeen offered a job.5
It is therefore quite possible that you
may have several staff living with HIV
who have not disclosed their status toyou. NAT’s research found that nearly
40% of respondents had not disclosed
their HIV positive status at work, mostcommonly because they simply saw
no need to do so.
However, some people living with HIV
may decide to disclose their status totheir manager or a colleague at work.

Or before they have been included on a group of successful candidates to be offereda job when a vacancy becomes available.

58This could be, for example, because
starting or making changes to
medication means that they now wish
to access reasonable adjustments, or
simply because they want to be open
about their status.

staff informs them that they have adisability. Managers should be madeaware of the particular sensitivities
around HIV because of thediscrimination some people may haveexperienced related to the condition.

If someone discloses their HIV status
to you, or a member of your staff, it
is important to respond in a sensitive
manner. Remember, many HIV
positive employees may fear thatthey will be discriminated against, so
it is important to reassure them thatyou will respect their confidentiality
and support them to manage theircondition at work.

Confidentiality at work

Make sure you remind people about
their right to reasonable adjustments.
It is also good practice to record leavespecifically related to an employee’s
HIV status as ‘disability leave’,keeping a record of this separate
from their general sick leave. Finally,
reassure people that you will not
discuss their status with anybody
without their permission. You canread more about the importance ofconfidentiality in the section below.
It is best practice to ensure that all
managers have training on how to
respond appropriately if one of their
6

In order to access reasonableadjustments and protection fromdiscrimination, an employee willusually have to disclose their HIV
status to their employer. However,
NAT’s employment research showedthat of people living with HIV who
had not disclosed their status atwork, more than half had not done
so because of fears around theirconfidentiality.
The Data Protection Act 1998 (DPA)
regulates how personal information isprocessed and protects all personalsensitive data disclosed by a job
applicant or employee. This includes
physical or mental health conditions.
The Data Protection Act specifies thatwritten consent is needed for personalsensitive information to be passed on.
Every responsible employer shouldhave procedures in place to ensurethat personal information about
employees is properly handled.6T he term ‘personal sensitive data’ has a technical definition within the Data Protection Act (1998).
More information about this and other aspects of Data Protection can be found at www.ico.gov.uk

HIV@ Work – Advice for employers

9

The Information Commissioner’s
Office has produced a code ofpractice for employers and can also
advise where people believe that theirrights have been infringed.7

disclosed without the consent of theemployee concerned.

As an employer you are liable forkeeping information obtained about
employees confidential. The Data
Protection Act regulates how personal
information is used and protects
sensitive data such as ethnicity,
political opinion, religious or otherbeliefs, trade union membership,
physical or mental health condition,
sex life, criminal proceedings orconvictions.

If an employee says that you
or a member of your staff havediscriminated against them, it isimportant that you deal with thecomplaint in the right way.

Depending on individual
circumstances, you might need todisclose this information to third
parties. In this case, only personnel
that ‘need to know’ should be informedof the situation. In practice, this willtend to include the Human Resourcesmanager or the person in chargeof implementing any reasonableadjustments. Explicit consent should
be sought from employees whensensitive information is processedby an organisation. Sometimes you
may need colleagues’ co-operation to
implement a reasonable adjustment,
but confidential details must not be

7

What to do if someone experiences
discrimination at your workplace

If someone believes they haveexperienced unlawful discrimination
they have the right to make an
Employment Tribunal claim. This canbe a long and expensive process.
Having the right procedures in place
to manage complaints can avoid
the need to go to Tribunal – it islikely to be in everybody’s interest
to put things right before a claim is
made to an Employment Tribunal.
NAT’s employment research foundthat nearly half of those who had
sought redress at work when
they experienced HIV-related
discrimination had had the issue
partially or completely resolved
through an internal grievance process.
If a member of staff makes a complaint,
ask them if they would like todiscuss this informally with you or amanager, or to go through a formal

The Information Commissioner’s Office ‘The Employment Practices Code’ (2005) is available at www.ico.gov.uk

10

grievance procedure. Explain thatcomplaining informally can be the moststraightforward way of dealing with acomplaint and that if it becomes clearthat discrimination has occurred,
you will take appropriate disciplinary
action and if necessary alter officeprocedures so that the event does notoccur again.
If your employee wishes to make aformal complaint, you should provide
them with information about how to do
this according to a formal grievanceprocedure. Further information
about handling a formal complaint
is available from Acas (for contact
details see ‘Further information,
advice and resources’ section).

Should you not be able to resolve acomplaint through your informal orformal grievance procedures, you
can find more information about
Employment Tribunals at Business
Link (England), Business Gateway(Scotland), Flexible Support for
Business (Wales) or NI Business Info
(Northern Ireland) (for contact details
see ‘Further information, advice andresources’ section).
Once the incident has been resolved,
it is important to review the situation
to ensure that no further unlawful
discrimination occurs in future.

HIV@ Work – Advice for employers

11Best practice and HIV in theworkplace	Help to end stigma anddiscrimination by improving staff
knowledge about HIV and raisingawareness by marking World AIDSDay on 1 December.

Throughout this guide we haveprovided some examples of bestpractice when managing staff livingwith HIV. This section provides
a check list of things to consider
to make sure you have proper
procedures in place to support HIV
positive employees:
	Ensure that all staff are provided
with diversity and equality training,which includes information
about HIV and the importance ofconfidentiality at work.
	Work with staff to develop a diversity
and equality policy which includes
information on disability and HIV –make sure all staff are aware of thispolicy and their responsibilities inrelation to it.
	Record employees’ leave related totheir HIV status as ‘disability leave’,keeping this separate from generalsick leave.

	Ensure that you have a harassment
policy in place and that you act
quickly to address any incident ofharassment in your workplace.
	Make sure that you have information
available about reasonableadjustments and support staff
should they wish to access these.
	Ensure that you have a clear
informal and formal grievanceprocedure in place to assist people
who feel that they have been
subjected to discrimination in theworkplace.

12

Some final thoughts
As an employer, you will want to havethe policies and procedures in placethat enable you to attract, develop
and retain the best staff you can – thismeans ensuring that your workplaceprovides a supportive environment forpeople living with HIV.
The Equality Act 2010 has introduced
some new protections for disabled
people, including those living with HIV.
It is important that you are familiar
with the changes introduced by the
Act and adapt your workplace policies
to reflect these changes.
There are some specific issues
to consider when recruiting staff– for more information see NAT’s
companion guide, HIV+Recruitment:
Advice for employers.

HIV@ Work – Advice for employers

The vast majority of people living withHIV have a very positive workplace
experience, and just get on with theirjob like any other employee. As an
employer, it is very unlikely that you
will ever face a discrimination case to
do with someone living with HIV, but
it is important that you are aware ofyour legal obligations.”13

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