Disclosure Dilemmas (03.06) In September last year former care worker Scott Watts won a landmark case against his then employers, High Quality Lifestyle Ltd (HQL) at an employment tribunal in Kent. Following a forced disclosure of his HIV status by an ex-partner Scott was initially dismissed for non-disclosure on his application form, despite there being no specific HIV related questions. He was then sacked following a risk assessment from which HQL deemed that Scott posed a ‘major’ risk to their clients, young men with challenging behaviour. HQL argued there was a likelihood Scott could be bitten by clients who would then be infected. As the likelihood of transmission in this manner is negligible Scott decided he couldn’t let the matter lie. The tribunal upheld Scott’s claim of disability-related discrimination against HQL. It also ruled that the company had both failed to maintain Scott’s confidentiality and to make reasonable adjustments to take account of his medical conditions as required under the Disability Discrimination Act (DDA). (read the full story at www.positivenation.co.uk in the December issue) Scott’s story raises interesting issues with regard to the need or not to disclose HIV status to employers, and there continues to be lack of consistency in this area. NLGBA has been pressing for changes particularly within the pre-employment health questionnaire that is sent to every prospective employee of a consortium of major employers, including the Borough and County Councils. This questionnaire, recommended by the employers’ contracted consultant in this area, a private company called MEDIGOLD, had until recently, asked the question “Have you ever had a test for HIV?”. This was argued as an irrelevant question, as more and more people are testing for HIV as a precautionary measure, e.g. pregnant women. This question has now been altered to one that asks the question, alongside a number of conditions “Have you ever suffered from HIV?” Leaving aside the absurdity of this particular question in terms of living with HIV, NLGBA continues to argue that MEDIGOLD and the employers they cover should concern themselves with the ability of the person to do the job, not a particular HIV Status. Yes, medical history is relevant, but that is about fitness for appointment, not about living with HIV. We have sourced best practice, and for example Camden London Borough’s Policy states: “Applicants for employment, both internal and external, are not required to disclose their HIV antibody status on either application forms or medical questionnaires, or at any other stage of the recruitment process. Although applicants are not required to state whether or not any specific illnesses are HIV related, they are required to disclose details of any specific illnesses which have affected them in the past. This is to enable the Occupational Health Service to assess whether an individual is medically fit for appointment”. This policy and the commitment it enshrines for people living with HIV is the goal that we are seeking to attain. Until then issues for prospective employees living with the virus in terms of disclosure, confidentiality, and potential dismissal for non-disclosure, will add to the stresses associated with seeking new employment. |