by Rosalie Hayes

In response to queries from individuals living with HIV and our colleagues in the sector, we have sought legal advice from Leigh Day on the employment rights of people living with HIV in the context of the COVID-19 pandemic, which we outline below. If you think there is some missing information, do get in touch and we will do our best to provide it.  

What is the advice from the Government?

The present advice of the Government (as of 23 March 2020) is that people with HIV “who are at increased risk of severe illness from coronavirus [‘COVID-19’] be particularly stringent in following social distancing measures.” 

In addition, the British HIV Association and Terence Higgins Trust have advised that:

1. Those with a CD4 of less than 50, or who have had an opportunistic illness in the last 6 months, class themselves as extremely vulnerable and take appropriate precautions. This means staying at home and avoiding face to face contact for 12 weeks. 
2. Those with a CD4 of less than 200 or not on ART follow social distancing advice stringently.
3. Those with a CD4 of greater than 200 and undetectable on ART follow general advice on social distancing

It is also worth considering if you have other health conditions which may increase your risk of severe illness from COVID-19. 

This will particularly impact those whose jobs necessarily involve a degree of social contact. People who need to stay at home, as result of the increased risk to them, ought to be eligible for Statutory Sick Pay [‘SSP’] even if they are not personally unwell. SSP is paid at a rate of £94.25 per week. You may also request that you are given a temporary leave of absence covered by a new government scheme (see ‘what should my employer be doing for me?’ below).

Should I speak to my employer?

If you are concerned that you are at a particular risk, in particular if your immune system is presently weakened, you may wish to inform or remind your employer of your HIV status and request that they put procedures in place to mitigate any risk to you.

Your employer should not subject you to any detriment for making such a request nor should they subject you to any detriment merely because you have HIV.

What if I don’t want to tell my employer I am living with HIV?

The best way to ensure that you have the full protection of the law is to tell your employer you are living with HIV. You can request that such information is kept confidential, under GDPR rules, and that it is shared amongst the minimum number of people necessary for you to be assisted to carry out your role.

If you feel unable to disclose the exact nature of your condition you may wish to seek a fit note from your GP.* This may simply be a recommendation that you self-isolate for a period of time given the functional impact of your condition. Ideally it should also state that this condition has lasted or will last for more than 12 months in order to assist in framing your condition as a disability under the Equality Act 2010 [‘EA 2010’]. In addition or alternatively, since HIV is automatically classed as a disability under the Equality Act you could ask your GP or HIV clinician to state in the letter that you have a condition protected under the Equality Act 2010. 

Your employer should comply with the recommendations of a registered medical professional however ideally the letter would disclose your condition to ensure that you will benefit from protection under EA 2010.

What should my employer be doing for me?

Your employer should be ensuring that you are able to work as safely as anyone else and have access to the same job opportunities as your colleagues, unless there are very good reasons why this is not possible.

In response to COVID-19 this may include:

• Allowing you to work from home
• Allowing you to temporarily work in a role that minimises your contact with the public
• Providing you with access to personal protective equipment
• Allowing you to socially distance yourself from colleagues and the general public
• Allowing you to self-isolate
• Giving you a temporary leave of absence (‘furlough’) deploying payments of 80% of your salary (up to £2,500) available from the government

What legal protections are available to me?

There are various legal protections available to assist you in ensuring that you are able to work in a healthy manner and to protect you from exploitation by your employer.

It is important to remember that given the present situation enforcing rights may become difficult. There are pressures on businesses that may see them cease operations and there are likely to be delays in progressing matters in the Courts for some time. If you think you have experienced discrimination from your employer, do get in touch with NAT and we can provide you with advice and signpost you to further sources of support.

Equality Act 2010

If your work is in England, Scotland or Wales your employer is bound to follow EA 2010. According to the Equality Act, HIV is defined as a disability from the point of diagnosis. You do not need to view your HIV as a disability in order to be protected by this law.

The following protections are available under EA 2010 if your employer knows you are living with HIV:

• Direct Discrimination – the right to not to be treated less favourably because you have a disability. For example, your employer dismisses you because you tell them that you have HIV
• Discrimination arising out of a disability – where a person is treated less favourably as a result of something that has happened because of their disability. For example, your employer disciplines you for taking time off work due to a requirement to self-isolate.
• Failure to make reasonable adjustments – where an employer fails to amend policies that put disabled people at a disadvantage. For example, you request to work from home but your employer refuses to allow you to do so.
• Harassment – subjecting disabled people to a hostile, degrading or intimidating working environment. For example, you ask to work from home due to your HIV status and your manager tells you to stop being soft.
• Victimisation – subjecting disabled people to negative treatment because they have tried to assert their rights under EA 2010. For example, you are disciplined for not being a team-player after making a request to work from home.

You are also protected from indirect discrimination even if your employer doesn’t know you are living with HIV. Indirect discrimination is where your employer has a policy that puts disabled people at a disadvantage. For example, your employer refuses to let people work from home despite the fact this would have a minimal impact on productivity.

A failure to comply with EA 2010 could give rise to a legal claim worth thousands of pounds so this can be an important tool to ensure that you are treated fairly by your employer. 

Health & Safety at Work Act 1977 & Management of Health & Safety at Work Regulations 1999

Under Health and Safety legislation you are required to take reasonable care for the health and safety of yourself and other people. At present, this may be interpreted as a requirement to share your HIV status to your employer if it puts you at an increased risk.

Your employer is under a duty to do everything that is reasonably practicable to ensure that you are safeguarded while you work. Your employer ought to be proactive in minimising any risks to you.

Risk assessments should be carried out to ensure the safety of your employer’s staff and service users and these risk assessments should be kept under review. Clearly the issues thrown up by COVID-19 would indicate that risk assessments should be updated to ensure your safety as an employee.

Employment Rights Act 1996

Sections 44 and 100 of the Employment Rights Act 1996 (ERA) provide protection for employees (but not workers) against both detriment and dismissal in cases involving health and safety issues in the workplace. 

If you are so concerned about health and safety at work that you do not attend, or choose to leave/cut short shifts, you could be protected under this legislation. Your employer is under a duty to ensure that your workplace is safe, if they fail to do so you are entitled to raise any issues with them without the fear of being treated badly as a result. If you refuse to subject yourself to a situation you genuinely and reasonably consider to be dangerous you should review the circumstances before doing so, this would include your own knowledge of the situation, the facilities available to you and any authoritative advice. You must be careful to ensure that any action you take is not negligent in the circumstances.

If you are briefed regularly on the dangers you face at work, are provided with all the necessary equipment (face masks, gloves, other protective clothing) and allowed proper breaks and rest periods it would be – from an objective point of view – a mitigated risk. However, if you are regularly working without proper protection, are unaware of what measures are in place to keep you safe and are genuinely afraid for health and safety you could fall under the scope of this law.

 As our understanding of Covid-19, and the associated risks, is rapidly changing issues such as an appropriate level of protection, and what constitutes ‘circumstances of danger’ will be contentious issues.

Where can I get more information?

As the situation is changing rapidly, it is worth also checking Leigh Day’s webpage on employment rights and COVID-19 to ensure you are up to date with the latest advice.

For more general information about HIV and COVID-19, please see the links below:

• NAT have put together a resource to draw together all the most up to date information on HIV and Coronavirus
• Information about COVID-19 for people living with HIV from Terrence Higgins Trust
• Comment from BHIVA and THT on UK Government Guidance on Coronavirus (COVID-19), Social Distancing to Protect Vulnerable Adults and Shielding to Protect Extremely Vulnerable Adults
• i-Base Q&As on COVID-19 for people living with HIV
• General information on COVID-19 from NHS
• UK government advice about COVID-19
• Full guidance on staying at home and away from others
• Information on COVID-19 from Department of Health and Social Care.
• HIV Scotland's advice on coronavirus.

NAT’s Looped in tool can help you produce and download information to share with your employer. You might find this particularly helpful if you are speaking to your employer about your HIV for the first time. Looped in now includes a specific topic addressing issues related to HIV and COVID-19.

*If you have not shared with your GP that you are living with HIV, speak to your HIV clinician to see if they can help. Please note that in Scotland, only GPs can issue fit notes. If you have symptoms of COVID-19, or are living with someone with symptoms, you can get an isolation note from the online 111 service.

Rosalie Hayes is Senior Policy & Campaigns Officer at National AIDS Trust (NAT).