By Rosalie Hayes

Last week we published some general information for employees living with HIV in response to the COVID-19 pandemic. We know that many employers have been understanding and considerate towards their employees during these unprecedented times. Unfortunately this can’t be said of all employers, and below we outline a real situation where we provided advice with support from law firm Leigh Day.

Please note: we believe the scenario below may have relevance for others in similar situations and therefore we hope this blog post will be of assistance as a free information resource. It cannot, however, be a substitute for legal advice about your employment rights based on your own particular circumstances. 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.

Ben[i] got in touch with us recently asking for some urgent advice. He is employed on a permanent contract by a private company. His job involves delivering training across the country. Ben is living with HIV and asthma and shared this information with his HR department and line manager when he started in his job. He was asked to start working from home because he had been identified as at high risk if he acquired COVID-19 due to his underlying health conditions. However, after two weeks, his employer contacted him to say he must come back to work to deliver training at different locations or be placed on statutory sick pay only. He was given 48 hours to decide whether he would ‘take the risk’ and go back to work or stay at home and receive only £94.25 a week.

What laws are potentially[ii] being breached here?

The most important thing to remember is that because Ben is living with HIV, he is protected by the Equality Act 2010[iii]. People living with HIV are automatically classed as disabled under the Equality Act as soon as they are diagnosed. It doesn’t matter if you don’t personally view yourself as disabled, you are still protected by the Act.

In our last blog, we explained the different types of discrimination that are made illegal by the Equality Act. In Ben’s case, we advised that his employer was potentially engaging in discrimination arising from disability. This is where someone is treated differently because of something connected to their disability, rather than the disability itself. In Ben’s case, he was being put at a disadvantage by his employer because by following the Government’s COVID-19 guidance and clinical advice related to people with his disability, he would lose out financially.

Under the Equality Act, Ben’s employer also has a duty to make reasonable adjustments to his role. This means that where a practice or policy may disadvantage disabled people, employers should make changes to that practice or policy to assist the affected person and ensure they can still carry out their role. Ben’s employer had failed to consider whether he could deliver training remotely or take on other work that could be carried out at home while remaining on full pay. If this wasn’t possible, it could also consider placing him on ‘furlough’ as a reasonable adjustment. Given his employer can access up to 80 per cent of Ben’s salary (or £2,500 per month maximum) of financial support through the Government’s ‘Coronavirus Job Retention Scheme’, this should be considered a reasonable adjustment.

Health and safety duties towards all employees

In addition to the protections outlined above that Ben is entitled to as a disabled employee, health and safety legislation also requires his employer to do everything, within reason, to ensure he and his fellow employees are safe at work and minimise any risks to them. It is also required to conduct a thorough risk assessment to evidence how it is going to keep its employees safe following the emergence of a new risk – in this case, the risk of acquiring COVID-19. Ben’s employer clearly hadn’t considered how it was going to keep him safe at work and it hadn’t provided him with a copy of its risk assessment.

What was our advice to Ben?

We advised Ben that it would be best to try and resolve the situation informally over the phone with his employer first and pass on the advice he had received from us. If that didn’t work, he should write a letter of complaint to his employer, stating that he is raising a formal grievance. For more information about taking action against discrimination at work, visit the Citizens Advice website (there are different pages for England, Scotland and Wales).