HIV LEGAL CORNER
WILL I BE SACKED FOR LYING ON FORM?
A new column, in association with Duncan Lewis &
Co solicitors, looks at common
legal problems that can affect our everyday lives
Q: I filled in a health questionnaire at work without disclosing the
fact that I have HIV. Somehow my boss has found out and wants to see me. What
will happen to me?
It may depend on what the questionnaire asked. If it asked you to state if
you had any long-term illness or conditions, and you stated you had none,
it could be said that you deliberately concealed material information that
your employer requested. But if the form was fishing for irrelevant information
you may be able to argue that you shouldn’t have been asked the question
in the first place. If the question has no relevance to your work, you could
argue that not answering/lying is not necessarily a ‘material’
non disclosure. Employers and employees have a contractural duty to not to
act in a way that jeopardises an implied ‘term of mutual trust and confidence’
that allows an employment contract to continue in a manner envisaged. Deliberate
concealment of your HIV status from your employer could be taken as a form
of dishonesty and, in theory, be regarded as ‘gross misconduct’.
But each case depends on its own facts, and it is unlikely an employment tribunal
would regard it as either satisfactory or reasonable to dismiss someone for
such a non-disclosure. It sounds like your boss may want to use this meeting
to find out more and to see if there is a need for disciplinary action. If
the meeting involves a discilplinary your employer should give you more advance
information.The Employment Act 2002 (Dispute Resolution) Regulations 2004
says an employer who thinks about dismissal or disciplinary action must put
in writing the employee’s alleged conduct or characteristics, which
led them to consider dismissal, or disciplinary action. They must send a copy
to the employee, and invite them to a meeting to discuss the matter. They
must also ensure the meeting takes place before action is taken, (except in
where the disciplinary
action consists of a suspension). You must also have an opportunity to respond
and attend. After the meeting, they must notify you of their decision and
your right to appeal.
Any employer has to bear in mind section 3A (1) (a) of the Disability Discrimination
Act 1995 which states: ‘an employer discriminates against a disabled
person if for a reason which relates to the disabled person’s disability,
he treats him less favourably than he treats, or would treat others, to whom
that reason does not apply.’ In addition, the Disability Discrimination
Regulations 2003 provide that any less favourable treatment on the grounds
of disability (in comparison to someone without that disability) is unlawful.
The ‘comparator’ in this case can be someone who is not disabled
or someone with a different disability.
If your employer follows a proper procedure, and/or contractual procedure,
and they give you reasonable opportunity to explain; and if they have treated
you no differently to how they would treat a person without disabilities;
they are unlikely to be found guilty of unfair dismissal, if that is indeed
the sanction that they choose. Mark Legister
Duncan Lewis & Co provide expert legal advice on HIV, employment, family
and other legal matters. 0207 923 4020.
For general non-legal advice on HIV at work contact Christina Earl at the
UKC’s Trade Union Diversity Development project, part of the Ensuring
Positive Futures Programme, on 020 7564 2180.
• This column is not intended as legal advice and should not be relied
upon as such. If you are faced with a employment problem whether similar to
the above or otherwise, your are advised to seek specialist legal advice.
