On 14 September renowned rugby player Gareth Thomas made public his HIV diagnosis. Thomas stated that he felt the pressure to go public after he received threats from tabloid journalists that they would publish details of his diagnosis. Thomas also stated that a reporter approached his parents regarding the story before he had told his parents of the diagnosis.
Rightfully, the story provoked outrage as people called out the unethical behaviour of tabloid journalists. As with all health conditions, HIV is a private and personal matter. Given the prevalence of HIV stigma that still exists, individuals may often prefer to withhold disclosing their HIV status to avoid discrimination in the workplace by employers or colleagues.
HIV Disability Discrimination Claims
HIV is automatically deemed a disability under the Equality Act 2010 for the purposes of discrimination law. It is unlawful to discriminate against an employee because of their HIV status. This includes treating an individual with HIV less favourably than someone who does not have HIV. The Equality Act also protects people with HIV from being harassed because of their status, and importantly it places a duty on employers to put in place reasonable adjustments to help overcome any substantial disadvantage caused to an individual because of their status.
Disclosing to an Employer
Employees do not have to disclose their HIV status to their employer in most circumstances. An exception is made for employees doing jobs with a high likelihood of exposure, for example certain healthcare professionals. In most cases, the individual can keep their HIV status private.
Unfortunately, the lived reality is that many individuals with HIV still face stigma, bigotry and harassment inside and outside of their workplace. Many people may feel it is safer not to reveal their condition to employers and colleagues. This is a decision for the individual to make, taking into account their circumstances and their safety.
In most cases, an employer must know about an individual’s HIV status before a claim for disability discrimination can be proven. Knowledge can be real or ‘constructive’, meaning that the individual can show the employer can reasonably be expected to have knowledge of their status. If an individual does not disclose their HIV status to an employer in some circumstances it may be difficult to demonstrate discrimination before an Employment Tribunal.
If an individual does want to inform their employer of their HIV status, for example so that workplace adjustments can be made, they can be selective as to who they disclose their diagnosis to. For example, they could disclose their diagnosis to just managers or HR staff. Employers have a duty of confidentiality to employees, and it may amount to a breach of trust and confidence between employee and employer to disclose an employee’s diagnosis to other staff without consent. An employer may be further liable for any bullying and harassment the employee faces as a result.
Written by Yavnik Ganguly, Paralegal – Employment and Professional Discipline