Written Evidence by the National AIDS Trust (HRW0004)

About National AIDS Trust

1. National AIDS Trust is the UK’s HIV rights charity. We work to stop HIV from standing in the way of health, dignity and equality, and to end new HIV transmissions.

2. In 2022, we launched a Discrimination Advice service for people living with HIV, supported by the National Lottery Community Fund. This service allows us to provide people living with HIV access to free legal advice about whether they have experienced discrimination related to their HIV status.

3. Our comments relate to the employment protections of people living with HIV, and primarily focus on Article 14 ECHR (Freedom from discrimination).

Labour market exploitation

Do workers from particular groups or in precarious employment disproportionately experience labour market exploitation? Does this raise concerns under Article 14 ECHR (freedom from discrimination)?

4. People living with HIV often experience stigma related to their HIV status, and this stigma often manifests as discrimination. This discrimination takes multiple forms, including:

• Breaches of confidentiality about HIV status
• Bullying and harassment
• Refusal of employment
• Failure to make reasonable adjustments to jobs/hiring processes
• Being overlooked for promotion
• Not having insecure work contracts renewed

5. ECHR Article 14 deals with ‘Freedom from discrimination’, and HIV status is considered within the “other status” provision of Article 14 due to case law. This follows the judgement of Kiyutin vs. Russia (2011) which determined that people living with HIV were a vulnerable group due to discrimination they experience.

6. When considering human rights at work, it is imperative that people living with HIV are seen as a group at risk of precarious employment, due to discrimination. This precedent follows ECHR case law such as I.B. vs. Greece (2013) that ruled that employment dismissal on the grounds of HIV status was a violation of Article 14 ECHR.

7. Case study: Termination of insecure contract due to sickness leave related to HIV status

• An individual recently diagnosed with HIV approached NAT’s Discrimination Advice service to explain how disclosure of their HIV status led to their insecure employment contract not being renewed.

• The individual worked in the crew of a theatre and had to take sick leave from work due to opportunistic infections because of advanced HIV infection. They had a temporary work contract, which is common industry practice. Once they returned to work, they shared their HIV status with their manager, but then were compelled to disclose this information to other colleagues. This was followed by inappropriate questions about their HIV treatment and recent medical history. Their HIV status was disclosed without their consent by the doctor who conducted a health assessment – a breach of data protection law and Article 8 ECHR.

• The individual’s work contract was eventually terminated because of the ongoing dispute over sick leave, as well as continuing disputes over pay, including sick pay. They also were denied the opportunity of a promotion, had deductions made to their holiday pay and were subjected to negative public discussions in the workplace about their HIV status.

• The individual contacted us for assistance, and we connected them to legal advice from an employment solicitor, who determined that they had been discriminated against under the Equality Act. It is apparent that this individual’s rights of ‘freedom from discrimination’ as per Article 14 ECHR were violated, as was their ‘right to privacy’ under Article 8 ECHR.

• This case study demonstrates that people living with HIV can be subject to precarious and discriminatory treatment at work impacting their human rights specifically because of their HIV status.

Retained EU Law and workers’ rights

To what extent is the UK's compliance with its human rights obligations, in relation to the protection of workers, currently dependent on retained EU law?

Protections from discrimination within the Equality Act 2010

8. In relation to Article 14 ECHR, the UK mostly meets its human rights obligations in Great Britain through the protections offered by the Equality Act 2010. The Equality Act protects workers from discrimination based on ‘protected characteristics’. As this Act is primary legislation, it is not dependent on retained EU law. We do however have concerns about the status of retained EU case law (see below).

9. A person living with HIV is classified under the protected characteristic of ‘disability’ within Schedule 1 of the Equality Act, meaning that they must not be discriminated against because of their HIV status.

10. Relevant sections within the Equality Act that relate to HIV discrimination in employment include: Direct discrimination (Section 13), Discrimination arising from a disability (Section 15), Indirect discrimination (Section 19), Failure to make reasonable adjustments (Sections 20 and 21), Harassment (Section 26) and Victimisation (Section 27).

11. In Northern Ireland, the Equality Act does not apply - similar provisions about disability are made under the Disability Discrimination Act 1995. Provisions in the Act related to employment rights include: Harassment (Section 3B), Discrimination against applicants and employees (Section 4) and Duty to make reasonable adjustments (Section 4A).

12. There are however no similar provisions to “indirect discrimination” or “discrimination arising from a disability”, which overall affords less protections against disability discrimination in employment in Northern Ireland than Great Britain.

13. The 1995 Act was implemented prior to EU Directive 2000/78/EC, which provides EU-wide protection from disability discrimination within employment. It therefore appears that the UK’s obligations to prevent disability discrimination in Northern Ireland depend on retained EU law. This is why Article 2(1) of the Northern Ireland Protocol retains this Directive, which must continue to be retained going forward to ensure fuller protection of human rights within Northern Ireland.

Concerns about case law and the Retained EU Law Bill

14. We have concerns that the Retained EU Law (Revocation and Reform) Bill in its current form will ‘sunset’ pre-existing retained EU case law at the end of 2023, unless preserved by Ministers until June 2026 or assimilated into UK law. This is an issue because the effects of some EU case law may be removed from UK law, despite the protections against discrimination they offer in the workplace. There have been contradictory reassurances about the status of retained case law from Government Ministers compared to the Bill’s explanatory notes.

15. Whilst we believe that the Equality Act offers these protections for workers with protected characteristics, this might not be the case for all employment rights. Important precedents set by EU case law not yet identified might be ‘sunsetted’ by this Bill, and this may damage our obligations under Article 14 ECHR. Indeed, the Government’s own Human Rights Memorandum on the Bill identified that revocation of provisions relating to Convention rights could impact some individuals more than others due to their characteristics.

16. The Government’s Retained EU Law dashboard currently identifies only one piece of retained EU case law related to discrimination: Allonby C-256/01 (2004), which “permits the policy position that a comparator is not required for demonstrating direct discrimination arising from a legislative provision, contrary to the Equality Act 2010”. 

17. We have concerns that amongst the thousands of pieces of retained EU law not yet identified, there may be further examples of case law that offer protections from discrimination that this Bill may ‘sunset’. For this reason, we believe no one can be certain if the UK is dependent on retained EU case law to comply with its human rights obligations relating to protection of workers.

International human rights treaties

Does the UK effectively comply with its international obligations to protect workers’ rights under the International Covenant on Civil and Political Rights, International Covenant on Economic and Social Rights, and International Labour Organisation Conventions? If not, what improvements should be made?

18. We believe that the UK does effectively comply with its international obligations to prevent discrimination in employment under the Covenants and Conventions mentioned, as the provisions of the Equality Act are robust enough to challenge discrimination at work in Great Britain using the framework of protected characteristics.

19. However, we are seriously concerned by suggestions made by the Prime Minister that the Equality Act should be revised. We strongly oppose any moves to make such changes, which we believe would be a breach of both our international human rights obligations to protect individuals from discrimination, and the purpose of the Equality Act domestically.

20. There are approximately 100,000 people living with HIV in the UK today, who rely on the Equality Act t protect them from discrimination. Suggestions of intention to modify the Equality Act are troubling, as this could weaken discrimination protections more widely for all protected characteristics.

21. There has been suggestion that the Prime Minister is particularly keen to remove protections under the protected characteristic of ‘gender reassignment’. We believe that removing protections within the Equality Act for any protected characteristic would be a violation of our international human rights obligations against discrimination, and such changes would set an alarming precedent.

03/03/2023