01 December is observed globally as World AIDS Day.

In a world that seems to be becoming increasingly unequal, World AIDS Day is an incredibly important day to commemorate those who have sadly passed from an AIDS-related illness, to show support for people living with HIV and to commit to ending ignorance and raise awareness of the AIDS epidemic which still affects millions worldwide.

Since the beginning of the HIV epidemic, there has been significantly damaging stigma and discrimination against people living with HIV. The HIV epidemic has also been closely linked with negative attitudes towards the LGBTQ+ community, especially homophobia and transphobia.

Studies carried out in 2016 and 2019 found that if someone living with HIV is on effective treatment and has an ‘undetectable’ viral load, they cannot transmit the virus. The phrase ‘Undetectable equals Untransmittable’, or ‘U=U’ has been coined as a result. This is not yet a commonly known fact and therefore stigma persists. In the UK, people living with HIV are considered disabled for the purposes of the Equality Act 2010 (the Act) from the point of diagnosis and enjoy automatic protections from discrimination in many areas of their lives, including employment.

Equality Act 2010

HIV is deemed a disability for the purposes of the Act, meaning anyone living with HIV receives automatic protection from discrimination. This automatic protection means employers have a legislative duty to protect workers living with HIV from discrimination and harassment. Employers must take all reasonable steps to prevent discrimination and harassment, this includes (but is not necessarily limited to) implementing and enforcing relevant policies, adopting suitable procedures for dealing with discrimination and implementing appropriate training for staff.

These protections also extend to recruitment. An employer cannot ask an applicant or interviewee about their health or HIV status before an offer of employment is made. Even when an offer is made an employer cannot discriminate against the prospective employee if they disclose their diagnosis. However there are some exceptions, for example where certain for jobs that involve ‘exposure-prone procedures’ such as in the medical or dental professions, but these aren’t necessarily specific to people living with HIV alone. 

Where an employer knows, or could reasonably be expected to know a worker has a disability they must make any reasonable adjustments necessary to remove the barriers faced by those workers. For people living with HIV, this might include time off to attend medical appointments or flexibility in working patterns and hours. Further, employers are prohibited from treating a worker living with HIV unfavourably because of something arising from their HIV status. For example, an employer should not discipline or treat unfavourably a worker living with HIV for having to attend frequent medical appointments.

An employer must also take steps to ensure workers living with HIV don’t face other forms of discrimination in the workplace. Employers should take complaints of harassment seriously and should not dismiss offensive, humiliating or hostile comments or conduct about HIV as ‘banter’ or ‘jokes’. Further, as the HIV epidemic has been closely linked with negative attitudes towards the LGBTQ+ community, homophobic or transphobic comments or harassment could also give rise to disability discrimination if there is some connection to a worker’s real or perceived HIV status.

Employers must also be aware of the impact their policies, provisions, criterion or practices have on people living with HIV even where they are applied equally, they could still put people living with HIV at a particular disadvantage whether an employer is aware of it or not. An employer may be able to justify these actions however its essential the rule in question is proportionate and there is a legitimate aim being pursued.

Yet, despite 10 years of legal protection under the Act, people living with HIV still experience discrimination in the workplace. There is often reluctance to tell employers of a diagnosis. While data protection laws regulate what an employer can do with that information, there can be distrust between workers and employers.

Employers must ensure staff feel safe and empowered to disclose their HIV status, or indeed any condition or disability. Employers should take steps to demonstrate they are an inclusive, compassionate and understanding workplace that proactively operates a zero tolerance approach to HIV discrimination, harassment and stigma.

Employers should be doing more to help end stigma with sensitive but effective workplace training and education.

If you’re having problems at work please contact the employment team who can advise what your options are.