Publication
Positively Employed: An Employer's Guide to HIV and Other Blood Borne Viruses (BBVs)
Your legal duties explained
‘I’m good at my job, I enjoy my job, I’m HIV positive.’ ( Employee )
The following legislation covers HIV and other BBVs in the workplace.
Health and Safety at Work etc. Act 1974
The basis of health and safety law is the Health and Safety at Work etc. Act 1974. Employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees.
The Management of Health and Safety at Work Regulations 1999
Employers must assess the risks to ALL employees and make arrangements for their health and safety. Therefore employers should ensure that:
- a risk assessment of the organisation is carried out for occupational health and safety to protect the health of all employees and this should include HIV and other BBVs. (See the Health & Safety Executive’s Five Steps to Risk Assessment in Further reading section);
- all first aid training covers HIV and other BBVs.
Disability Discrimination Act 1996
Under the Disability Discrimination Act (DDA) 1996, it is unlawful for employers to treat people with disabilities less favourably because of their disability. The DDA came into force in 1996 and currently only applies to employers with more than 15 employees but this is set to change in the very near future. From 2004 the DDA will apply to all employers regardless of size. The DDA includes ‘progressive’ conditions such as HIV as long as there is ‘some’ impact on normal day-to-day activities.
According to the DDA, the employer has to make ‘reasonable adjustments’ if a disabled job applicant or employee is at a disadvantage in relation to others. The duty applies to both physical features of the employer’s premises, e.g. fittings and equipment and to all other aspects of employment including recruitment, training and retention.
If a person with HIV has grounds to believe they have been discriminated against by their employer, they can take the organisation to an employment tribunal.
It would be unfair to dismiss someone for being HIV positive unless there was some job-related consequence, which is likely to be rare. However, unfair dismissal requires one-year service.
However, there may be issues concerning other employees’ attitudes and behaviour and the employer should handle situations carefully to avoid harassment or bullying as this could trigger legal liabilities. The employer is vicariously liable* for the actions of his/her employees acting in the course of employment. This definition has been generously interpreted in recent years and damages in such cases can be extensive.
Employers have a duty of care to look after their employee’s health. This can lead to claims of breach of contract which can include psychiatric damages.
* Vicarious Liability: When one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. For instance, a parent sometimes can be vicariously liable for the harmful acts of a child and an employer sometimes can be vicariously liable for the acts of a worker.