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HIV status and the employment rules

Legal protections of HIV infected persons regarding employment and leave to remain 17 November 2008. Are all workers in the UK required to declare their HIV status?

The Disability Discrimination Act does not say that an employee or job applicant must declare a disability to an employer or prospective employer. Many people living with HIV do not consider themselves to be disabled and do not like the label. Often people with HIV are reluctant to declare a disability because of the stigma and discrimination they have faced when applying for work or in work. The advantages of telling an employer about your diagnosis of HIV are that you will not have to explain the side effects of medication or be worried about trying to conceal the impairment. It does depend on the employer’s attitudes to HIV. However you do have an obligation under health and safety legislation if there is an occupational risk of transmission (such as a healthcare worker doing ‘invasive procedures’)

Can an employer fire or refuse to hire someone who is HIV positive?

It is important to note that if you conceal your HIV condition on a medical form and it is found out at a later date, you could be dismissed. An employer does have the right to consider your suitability for the post but this also means they have to consider what reasonable adjustments you might need before they make a decision. Employers have to abide by data protection law which safeguards confidentiality of personal or medical details.

What can an HIV positive person who is discriminated against at work place do?

The amended Disability Discrimination Act provides protection to people living with HIV. Anyone living with HIV is deemed to have a disability from the point of diagnosis. It is important to note, that even though people with HIV status can claim protection under the Disability Discrimination Act, they don’t have to call themselves disabled. Nor do they have tell their employer-this means that people living with HIV can’t legally be harassed or discriminated against in recruitment; in employment terms and conditions; in opportunities for promotion, transfer, training or other benefits; through unfair dismissal or less favourable treatment than other workers. Employers are also vicariously liable for staff who behave in a discriminatory way in the workplace so if an HIV positive person is discriminated against, they should seek the assistance of an Employment Solicitor who can advise them of their rights.

Can an illegal immigrant or refused asylum seeker who is HIV positive be removed from the UK?

Where a person has HIV or Aids, they may claim that their removal from the UK would constitute a violation of Article 3 of their Human Rights which is “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The Home Office’s policy is to consider whether under Article 3 where the removal of a person undergoing medical treatment where the country to which we they will be removed to cannot offer comparable treatment to that which they enjoy in the United Kingdom. Recent case law (both at domestic and Strasbourg level) has confirmed that the circumstances in which an individual can resist removal on Article 3 related medical grounds will be exceptional.

The Court of Appeal has found that where similar treatment may not be available to a person in their home country because of its cost, this does not amount to a claim of inhuman or degrading treatment. However to attempt to return someone to a country where there is a complete absence of treatment, facilities or social support which could result in an imminent and lingering death and cause acute physical and mental suffering would be very likely to engage the UK’s obligations under Article 3, where the UK is treated as having accepted responsibility and therefore the Home Office would be swayed to grant leave to remain.

Please note that the above article does not relate to nationals of the European Union. The above article is meant to be relied upon as an informative article and in no way constitutes legal advice.
For legal advice regarding your case, please contact Greenfields Solicitors for a Consultation with a Solicitor.

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